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Home My WebLink AboutFile #3 - Correspondence/Legal Documents (1982) OFFICE OF THE CITY ATTORNEY • RENTON,ASHINGTON ' % POST OFFICE BOX 626 100 S 2nd STREET • RENTON. WASHINGTON 98057 255-8678 MIL LAWRENCE I.WARREN, ciTY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 9,0 CO' DAVID M. DEAN, ASSISTANT CITY ATTORNEY 917'F0 SEPT ��<(.0P MARK E. BARBER, ASSISTANT CITY ATTORNEY ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY February 16 , 1984 MARTHA A.FRENCH, ASSISTANT CITY ATTORNEY CITY OF RELATOR{ TO: Barbara Y. Shinpoch, Mayor : EB 16 1984 ,avid Clemens , Policy Development Director POLICY DFVFLOPA4FcT nFFT FROM: Lawrence J. Warren, City Attorney RE : Playtime Theatres , Inc. v. City of Renton Enclosed please find a copy of the City' s. Brief which has been submitted in the Ninth Circuit Court 'of Appeals . Lawrence J. Warren LJW:nd Encl. cc : Council President • NO. 83-3805 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PLAYTIME THEATERS, INC. , a Washington corporation, and KUKIO BAY PROPERTIES, INC. , a Washington corporation, Appellants , vs . THE CITY OF RENTON, et al . , Appellees . On Appeal from the United States District Court For the Western District of Washington BRIEF OF APPELLEES CITY OF RENTON, et al . Lawrence J . Warren Daniel Kellogg Warren & Kellogg, P. S. 100 South Second Street P .O. Box 626 Renton, Washington 98057 (206 ) 255-8678 li TABLE OF CONTENTS I . STATEMENT OF THE CASE 1 !' A . Nature of the Case 2 B . Jurisdiction of the District Court 2 C . Jurisdiction of the Court of Appeals 4 D . Appealability of Lower Court Ruling 4 E . Timeliness of the Appeal 4 F . Attorney Fees 4 II . STATEMENT OF FACTS 5 A . Background on Enactment of Ordinance No . 3526 5 B . On January 26 , 1982 , Plaintiffs Filed a Civil Rights (42 U . S. C . section 1983) and Declaratory Judgment Action (28 U . S.C . section 2202) challenging Ordinance No . 3526 . On February 3 , 1982, Magistrate Sweigert recommended that the Motion for a Temporary Restraining Order be denied 7 C . On February 9 , 1983 , Plaintiffs filed an Amended and Supplemental Complaint in which they pleaded contradictory facts under oath , and changed the theory set forth in their original Complaint 9 D . On February 19 , 1982 , the City of Renton filed a State Declaratory Judgment Action 10 E . The City of Renton filed its first Motion to Dismiss on February 22, 1982 10 F . Plaintiffs filed a Petition to Remove the City of Renton' s State Declaratory Judgment Action on March 8 , 1982 11 G . The City of Renton ' s first Motion to Dismiss was argued on March 12 , 1982 11 i H . The City of Renton' s Motion to Remand is heard on April 9 , 1982 . Magistrate Sweigert stated in an oral opinion from the bench that the State Action should be remanded, but the State Declaratory Judgment lawsuit is not remanded until January 13, 1983 12 I . The City of Renton enacted Ordinance No . 3629 as an emergency amending ordinance on May 3 , 1982 13 J . The City of Renton filed a Renewed Motion for Dismissal and Motion for Summary Judgment 14 K . Judge McGovern denied the City of Renton' s first Motion to Dismiss on May 5 , 1982 14 L . The City of Renton re-enacted Ordinance No. 3629 as a regular ordinance on June 14 , 1982 14 M . On November 5 , 1982 , Magistrate Sweigert recommended that the City of Renton ' s Motion for Summary Judgment and Renewed Motion to Dismiss be denied and that the Plaintiffs ' Motion for Preliminary Injunction be granted 14 N . The City of Renton filed a Petition for Writ of Mandate in the Court of Appeals on December 2 , 1982 15 0 . On December 9 , 1982 , U . S . Magistrate Sweigert filed a Supplemental Report and Recommendation 15 P . On January 13 , 1983 , Judge McGovern entered an Order approving U. S . Magistrate Sweigert' s Report and Recommendations . Plaintiffs commenced operation as an "adult motion picture theater" 16 Q . On January 24 , 1983 the City of Renton filed a Supplemental Pleading to its Petition for Writ of Mandate seeking a stay of the Preliminary Injunction issued on January 13 , 1983 16 ii R . The parties entered into a Stipulation to sever the Plaintiffs' claim for damages , and to submit the case for final determination upon the then existing record 17 S . The Court of Appeals denied Petition for Writ of Mandate 17 T . On February 17, 1983, the district court filed its final Order , vacating the Preliminary Injunction as "improvi- dently granted" , holding Renton Ordinance No. 3526 constitutional and denying the motion for a Permanent Injunction 17 U . Notice of Appeal 18 III . THE STANDARD OF REVIEW BY THIS COURT IS THE "CLEARLY ERRONEOUS" TEST REQUIRED BY FED . R . CIV. P . 52( a) 18 IV . THE PLAINTIFF ' S APPEAL IS BASED UPON AN INCORRECT CONSTRUCTION OF THE STIPULATION . ENTRY OF THE DISTRICT COURT 'S FINAL JUDGMENT WAS APPROPRIATE 19 V . THE FINDINGS OF FACT INCLUDED WITHIN THE DISTRICT COURT 'S WRITTEN OPINION ARE NOT "CLEARLY ERRONEOUS" AND ARE SUPPORTED BY THE RECORD 21 VI . THE DISTRICT COURT DID NOT SHIFT THE BURDEN OF PROOF TO THE PLAINTIFFS TO SHOW A SUBSTANTIAL IMPOSITION ON FIRST AMENDMENT PROTECTED EXPRESSION 32 VII . THE RENTON ZONING ORDINANCE DOES NOT CREATE A STATUTORY CLASSIFICATION THAT IS NOT RATIONALLY RELATED TO A VALID PUBLIC PURPOSE OR NECESSARY TO THE ACHIEVEMENT OF A COMPELLING GOVERNMENTAL INTEREST 33 VIII . PLAINTIFFS CITE NO AUTHORITY FOR THE PROPOSITION THAT A FAILURE TO INCLUDE OTHER ADULT BUSINESSES WITHIN THE SCOPE OF THE ORDINANCE IS A DENIAL OF EQUAL PROTECTION 35 iii IX. THE DEFINITION OF "USED" IS NOT IMPERMISSIBLY VAGUE IN VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION 37 X . THE ORDINANCE DEFINITION OF "ADULT MOTION PICTURE THEATER" IS NARROWLY DRAWN AND IS NOT OVERBROAD 40 XI . THE RENTON ZONING CODE DOES NOT CONSTITUTE A PRIOR RESTRAINT UPON EXHIBITION OF SEXUALLY EXPLICIT MATERIALS WITHOUT A GUARANTEE OF PROCEDURAL SAFEGUARDS 41 XII . THE JUDGMENT OF THE U . S . DISTRICT COURT WHICH DENIED PLAINTIFFS' MOTION FOR A PERMANENT INJUNCTION SHOULD BE AFFIRMED, BUT FOR A DIFFERENT REASON 43 XIII . CONCLUSION 44 APPENDIX A - Ordinance No . 3526 47 APPENDIX B - Ordinance No . 3629 49 APPENDIX C - Ordinance No . 3637 ' 56 APPENDIX D - Stipulation and Order dated February 8 , 1983 63 APPENDIX E - Correspondence to and Reply from District Court 66 APPENDIX F - Excerpt of Answers to Inter- rogatories and Requests for Admissions Filed by Plaintiffs in State Enforcement Action 69 iv TABLE OF AUTHORITIES Federal Decisions Allen, et al . v. McCurry, 449 U .S. 90 , 101 S. Ct 441 , 66 L. Ed . 2d 308 ( 1980) 3 ,44 Avalon Cinema Corporation v. Thompson, 667 F .2d 659 (8th Cir . 1981 ) 24 ,27 Basiardanes v. City of Galveston , 682 F . 2d 1203 (5th Cir . 1982) 27 ,30 ,32 Belle Terre , Village of v. Borass , 416 U . S. 1 , 94 S .Ct . 1536 , 39 L .Ed . 2d 797 ( 1974) 34 ,36 Broadrick v. Oklahoma , 413 U.S . 601 , 93 S.Ct . 2908 , 37 L .Ed . 2d 830 39 j District of Columbia Court of Appeals v . Feldman & Hickey, U . S. 103 S. Ct . 1303 , 75 L . Ed . 2d 206 ( 1983) 3 Eastlake v. Forest City Enterprises , Inc . , 426 U. S. 668 ( 1976 ) 24 , 28 Ebel v. City of Corona , 698 F .2d 390 (9th Cir . 1983) 24 ,28 Erznoznik v. City of Jacksonville , 422 U . S. 205 , 95 S .Ct . 2268 , 45 L .Ed . 2d 125 ( 1975 ) 39 ,40 Genusa v. City of Peoria , 619 F . 2d 1202 (7th Cir . 198-0 ) 24 Glaspey v. Norris , 231 F. 2d 881 (9th Cir . 1956 ) 21 Hicks v . Miranda , 422 U . S . 332 , 95 S . Ct . 2281 , 45 L .Ed . 2d 223 ( ) 975 ) 3 , 10 Hoffman Estates , Village of v . Flipside, Hoffman Estates] Inc. , 455 U .S . 489 , 102 S. Ct . 1186 , 71 L. Ed.. 2d 362 ( 1982) 39 Huffman v. Pursue Ltd . , 420 U . S. 592 , 95 S. Ct . 1200 , 43 L. Ed 2d 482 ( 1975) 3 , 11 , 12 v 1 1 J -R Distributors v . Eikenberry , F . 2d ( 9th Circuit No . 82-34-T1 , decided February 6 , 1984) 40 Juidice v . Vail , 430 U . S . 327 , 97 ' 1 S. Ct . 1211 , 51 L. Ed . 2d 376 ( 1977) 3 , 11 Katzenbach v. Morgan , 384 U.S . 641 , 86 ; 1 S .Ct . 1717 , 16 L.Ed . 2d 828 ( 1966 ) 29 , 35 1 Keego Harbor Co . v . City of Keego Harbor , 657 F .2d 94 (6th Cir . 1981 ) 27 , 30 ' 1 Kuzinich v. County of Santa Clara , 689 F . 2d 1345 (9th Cir . 1982) 24 ,27 ,28 Lundgren v. Freeman , 307 F .2d 104 (9th Cir . 1962) 18 Martinez v. California , 444 U .S. 277 , 100 S. Ct . 553 , 62 L. Ed 2d 481 ( 1980) 3 ,44 I Massachusetts Mutual Life Ins . Co . v. LLuuddwwig, 426 U . S. 479 , 96 S .Ct . 2158 , )45 L. Ed . 2d 784 ( 1976) 4 ,44 McLaughlin v. Florida, 379 U .S . 184 , 22 S. Ct . 283 , 13 L .Ed . 2d 222 ( 1964) Middlesex County Ethics Committee v. Garden State Bar Ass ' n . , _ U . S . ,I , 102 S. Ct . 2515 , 73 L . Ed . 2d 116 1982) 3 , 15 ' Miller v. California, 413 U . S. 15 , 93 11 S. Ct . 2607 , 37 L . Ed . 2d 419 ( 1973) 1 Moore v. Sims , 442 U .S. 415 , 99 S .Ct . 2371 , 60 L . Ed . 2d 994 ( 1979 ) 3 , 11 New Orleans ,. City of v . Dukes , 472 U . S. 297 , 96 S .Ct . 2513 , 49 L .Ed . 2d 1 511 ( 1976) 29 ,35 Northwestern Laundry v . Des Moines , 239 U . S. 486, 60 L .Ed. 396 (1915 ) 29 , 35 Ohio Bureau of Em.loyment Services v. Hodory, 431 U . S. 471 , 97 S .Ct . 1898 , 52 L. Ed . 2d 513 ( 1977) 4 , 11 Parker v. Lev_ , 417 U . S. 733 , 94 S .Ct . 2547 , 41 L . Ed . 439 39 vi Parratt v. Taylor , 451 U .S. 527 , 101 S. Ct . 1908 , 68 L . Ed 2d 420 ( 1981 ) 3 ,44 Pennhurst State School and Hospital v . Halderman, U . S. , 52 Law Week 4155 (No . 81 -2101 , decided January 23 , 1984) 4 Playtime Theatres , Inc . v . City of Tacoma , (Ninth Circuit Court of Appeals No . 81-3544 ) 6 , 18 Renton, City of v. Playtime Theatres , Inc . , et . al . , United States District Court for the Western District of Washington at Seattle , No . C82-263 11 Renton , City of v. U . S. District Court , (9th Circuit Court of Appeals No . 62-7721 ) 15 Roth v. U . S. , 354 U .S. 476 ( 1957 ) 40 Schad v. Borough of Mt . Ephraim, 452 U .S . 61 , 101 S. Ct . 2176 , 68 L . Ed . 2d 671 ( 1981 ) 27 , 30 , 45 Southwest Forest Industries , Inc . v . Westinghouse Electric Corporation , 422 F .2d 1013 , (9th Cir . 1970 ) ; cert . den . 400 U . S. 902 , 91 S.Ct . 138 , 27 L .Ed . 2d 138 21 Stanley v. Georgia , 394 U .S . 557 , 89 S . Ct . 1243 , 22 L .Ed . 2d 542 ( 1969 ) 35 Starsky v. Williams , 512 F . 2d 109 (9th Cir . 1975 ) 2 ,21 ,22 Steinsvik v . Vinzant , 640 F . 2d 949 (9th Cir . 1981 ) 18 Tovar v. Billmeyer , F .2d . (9th cir. No . 52-358, decided December 15 , 1983) 27 ,28 Trainor v. Hernandez , 431 U . S. 434 , 97 S. Ct . 1911 , 52 L. Ed . 2d 486 ( 1977 ) 3 , 11 U . S . v . O ' Brien , 591 U . S . 367 , 88 S . Ct . 1673 , 20 L .Ed . 2d 672 ( 1968) 2 , 35 , 45 U . S. v . U . S. Gypsum Co . , 333 U . S. 364 , 68 S. Ct . 525 , 92 L . Ed . 746 ( 1948) 31 vii it U . S. v . Weiner , 578 F .2d 757 25 United States v . Chesher , 678 F . 2d 1353 , (9th Cir . 1982) 18 Young v. American Mini Theatres , 427 U . S. 50, 97 S .Ct . 191 , 49 L .Ed . 2d 310 ( 1976 ) 1 , 3 ,5 ,6 ,7 ,25 , 30 , 33, 34 , 36 , 38 ,39 ,45 Younger v . Harris , 401 U . S . 37 , 91 S . Ct . 746 , 27 L .Ed 2d 669 ( 1971 ) 12 ; ! State Decisions ' 1 Northend Cinemas v. Seattle , 90 Wn . 2d 709 , 585 P .2d 1153 ( 1978 ) 1 , 5 ,6 ,7 ,25 , 33 , 45 Renton , City of V. Playtime Theatres , Inc . , et al . , 1 (King County , Washington , Superior Court No . 82-2-02344-2) 10 1 Sacramento , County of v. Superior Court3 Goldies Book Stores Inc . , 137, � Cal . App . 3rd 448-, 187 Cal. Rep . 154 ( 1982) 25 , 26 State v. J-R Distributors , 82 Wn. 2d 584 , 512 P .2d 1049 ( 1973) 1 Weiner v. Mitchell , Silberberg & Knupp , 114 Cal . App . 3d 35 , 170 Cal . Rep . 533 25 Whitaker , Ci y of v. Walnut Properties Inc . , 139 Cal . App . 3d 618, 189 Cal . Rep. 12 ( 1983) 24 viii I Ili ill STATUTES Federal Statutes 28.U . S.C. , Section 1131 ( a) 8 it 28 U. S. C . , Section 2201 3 28 U . S.C. , Section 2202 3 , 7 ,8 42 U. S.C . , Section 1983 3 ,8 III 42 U . S.C. , Section 1988 3 ,5 I State Statutes R. C.W. 35 .22 . 280 36 1 R . C.W. 35A . 11 . 020 36 it R. C .W. 35A .63 . 100 36 it City Codes �I Renton Code of General Ordinances , Section 4-3011 (B) (5 ) 43 dill Ordinances 'I, City of Renton Ordinance No . 3526 1 , 5 ,7 , 8 , 10 , 13 ,22 ,30 ,41 li City of Renton Ordinance No . 3629 8 , 13 , 14 , 26 , 37 , 41 City of Renton Ordinance No . 3637 8 , 14 , 17 ,23 ,26 ,37 COURT RULES ;I Fed. R . Civ . P. 52(a) i8 , 31 it Fed . R. Civ. P . 56 2 , 14 , 19 ,21 Fed . R. Civ. P . 57 8 Fed. R. Civ. P . 60(a) 20 III ix il'I I . STATEMENT OF THE CASE A . Nature of the Case . This is an appeal by an operator of an adult motion picture theater from the decision by the district court that City of Renton Ordinance No. 3526 , as amended , was constitutional . The ordinance required separation of an adult motion picture theater from certain family-oriented zones and uses . The district court found the ordinance to be in accord with Young v. American Mini Theatres , 427 U . S . 50 ( 1976 ) , and Northend Cinema v. City of Seattle , 90 Wn. 2d 709 , 585 P . 2d 1153 ( 1978 ) . The district court found that the ordinance caused "minimal intrusion" upon protected speech1 noting that no adult motion picture theater operations 1 Appellants contend that they intend only to exhibit adult motion picture films which are protected by the First Amendment , i . e . , not obscene . ( CR 23 , page 7 , line 3 ; Appellants ' Brief, page 2) . However, it is of interest to note that in the enforcement action commenced by the City of Renton in the state court against these Plaintiffs following entry of the district court ' s judgment that the ordinance was constitutional , the advisory jury made a contrary finding, at least in part . The jury was instructed under the obscenity test set forth in Miller v . California , 413 U . S . 15 ( 1973) , and State v. J-R Distributors , 82 Wn . 2d 584 , 512 P .2d 1049 ( 1973 ) . Based upon a stipulation of the parties , ten films which had been exhibited by the Plaintiffs at the Renton Theater since January 20 , 1983 , were submitted to the jury as a "representative sample" of nearly 100 films which had been exhibited during that time . The advisory jury' s verdict , returned on January 23 , 1984 , found that the Plaintiffs had exhibited "specified sexual activities" and "specified anatomical areas" as defined in the ordinance as a "continuous course of conduct" and "in a manner which appeals to a prurient interest" since January 20, 1983 . Furthermore, the jury found four of the ten films to be obscene : "Devil In Miss Jones" , "Debbie Does Dallas" , "Taboo II" and "Little French Maid" . The state trial court has taken the jury' s advisory verdict under advisement . The final opinion of the trial court has not yet been filed . - 1 - were in existence when the ordinance was adopted , and there existed within the City 520 acres of land in all stages of devel- opment available for location of an adult motion picture theater. The "minimal intrusion" upon protected speech was found by the district court to be justified under the four-part test set forth in U .S. v. O'Brien , 591 U . S. 367 , 88 S .Ct . 1673 , 20 L .Ed . 2d 672 ( 1968 ) . The legislative history of the ordinance established I that the intent of the City Council in the enactment of the ordinance was the prevention of deleterious secondary effects of an adult motion picture theater . The district court found that the restriction imposed was not greater than necessary to accomplish the governmental interest of preservation of the i' quality of life of the residents of the family-oriented areas of I' the City of Renton . The district court' s decision was characterized as a summary judgment under Fed . R . Civ . P . 56 . This was based upon the stipulation of the parties which closed the evidence and submitted the case for determination after final oral argument . Therefore , under Starsky v . Williams , 512 F . 2d 109 ( 9th Cir . 1975 ) , the district court was free to determine all issues and to resolve factual issues . On this ap peal , it cannot be shown that the district court ' s findings of fact are "clearly erroneous" . The facts as found by the district court mandate affirmance . B . Jurisdiction of the District Court Appellants Playtime Theatres , Inc. and Kukio Bay Properties (hereinafter "Plaintiffs" , or "Playtime" and "Kukio" ) claim that - 2 - the facts which they alleged in their original complaint filed on January 20 , 1982 , and in their first amended and supplemental complaint filed on February 9, 1982, state a claim for federal relief under the Federal Civil Rights Act , 42 U . S . C . , section 1983, and that the U.S . District Court had both subject matter jurisdiction and discretion to grant federal injunctive and other relief, under the Civil Rights Act (42 U. S. C. , sections 1983 and 1988) and the Declaratory Judgment Statute (28 U. S. C . , sections 2201 , 2202) . Appellees, the City of Renton , et al . , (hereinafter "City of Renton") contend: ( 1 ) That both the original complaint and the first amended and supplemental complaint failed to state a claim upon which federal relief can be granted under the Civil Rights Act . Young v. American Mini Theatres , 427 U . S. 50 , 97 S.Ct . 191 , 49 L .Ed . 2d 310 ( 1976 ) ; Martinez v. California , 444 U. S . 277 , 285, 100 S. Ct . 553 , 62 L. Ed. 2d 481 , 489 ( 1980 ) ; Allen, et al . v. McCurry , 449 U.S . 90 , 100-101 , 101 S. Ct . 441 , 66 L . Ed . 2d 308 , 317 ( 1980) ; Parratt v . Taylor , 451 U . S. 527 , 543-544 , 101 S.Ct . 1908 , 68 L. Ed. 2d 420 , 434 ( 1981 ) ; and (2) That the City of Renton , acting in its governmental capacity , had the right to refuse to consent to federal jurisdiction on Plaintiffs' Declaratory Judgment claim, and to insist that the important state interests as applied to Plaintiffs and Plaintiffs' constitutional defenses thereto be resolved in a Declaratory Judgment action in the State Court , Huffman v. Pursue Ltd. , 420 U. S. 592 , 606-607 , 95 S. Ct . 1200 , 43 L. Ed. 2d 482, 493-494 ( 1975) ; Hicks v. Miranda , 422 0.S . 332 , 348-350 , 95 S .Ct . 2281 , 45 L .Ed. 2d 223 , 238-239 ( 1975) ; Juidice v. Vail , 430 U. S. 327 , 97 S .Ct . 1211 , 51 L. Ed . 2d 376 ( 1977 ) ; Trainor v. Hernandez , 431 U. S . 434 , 97 S.Ct . 1911 , 52 L.Ed . 2d 486 , 496 ( 1977.) ; Moore v. Sims , 442 U.S. 415 , 430 , 99 S .Ct . 2371 , 60 L . Ed . 2d 994, 1007 ( 1979 ) ; Middlesex County Ethics Committee v. Garden State Bar Ass'n. , U. S . , 102 S. Ct . 2515 , 73 L . Ed . 2d 116 ( 1982�; See also , Associate Justice Stevens dissent in District of Columbia Court of Appeals v. Feldman & Hickey , - 3 - U .S . , 103 S. Ct . 1303 , 75 L. Ed . 2d 206 , at 227 , fn . 2 , ( 1983) and Ohio Bureau of Employment Services v . Hodory , 431 U . S . 471 , 480 , 97 S . Ct . 1898 , 52 L .Ed . 2d 513 , 521 ( 1977) ; see also Pennhurst State School and Hospital v. Halderman , U . S . , 52 Law Week 4155 (No . 81 -2101 , decided January 23 , 1984) ; and (3) That the trial court erred in denying the City of Renton's motion to dismiss the Civil Rights action, and in awarding Plaintiffs ancillary relief ( preliminary injunction) under the civil rights statute . C . Jurisdiction of the Court of Appeals Appellee agrees with the position taken by Appellants . D . Appealability of Lower Court Ruling Appellee agrees with the position taken by Appellants . E. Timeliness of the Appeal Appellee agrees with the position taken by Appellants . F . Attorney Fees The City of Renton claims that the judgment of the U . S . District Court which denied Plaintiffs' request for injunctive relief under the Civil Rights Act should be affirmed, but for a different reason, Massachusetts Mutual Life Ins . Co. v. Ludwig, 426 U . S . 479 at 480 , 96 S . Ct . 2158 , 48 L . Ed . 2d 784 , at 786 ( 1976 ) ; namely, ( 1 ) That Plaintiffs had failed to state a claim upon which federal relief can be based under the Civil Rights Act; (2) That , under the trial facts , the trial court was required to abstain ; and (3) That the trial court lacked subject matter ' jurisdiction to hear the declaratory judgment aspect of the lawsuit , inasmuch as the City of Renton had refused to consent to federal jurisdiction and had insisted that the Declaratory Judgment issues regarding the vital state interests be heard in the state court . - 4 - Pursuant to such reasoning, the City of Renton further claims that Plaintiffs acted in bad faith in filing the civil rights action, and that the City of Renton is entitled to a reasonable attorney' s fee as a "prevailing defendant" on such issues in the trial court, under both the common law exception applicable to attorneys fees where a plaintiff is found to have filed such action in subjective bad faith and under 42 U. S. C. , section 1988 , where it can be said that the plaintiff can be charged with objective bad faith in filing such action . The City of Renton also seeks a reasonable attorney' s fee as the prevailing party on this appeal upon both of the above grounds . II . STATEMENT OF FACTS The City of Renton objects to the "Statement of Facts" which Plaintiffs have set forth in "Appellants ' Opening Brief" as being inaccurate , and offers in lieu thereof the following : A . Background on Enactment of Ordinance No . 3526 On June 24, 1976, the United States Supreme Court decided Young v . American Mini Theatres , Inc . , et al . , 427 U . S . 50 , upholding a Detroit zoning ordinance restricting the location of a land use of "adult motion picture theatre" , among others . A similar ordinance of the City of Seattle was approved by the Washington State Supreme Court in Northend Cinemas v. Seattle , 90 Wn . 2d 709 , 585 P . 2d 1153 ( 1978 ) . This court has likewise previously found an ordinance enacted by the City of Tacoma , Washington, and patterned after Young, to be constitutional in an - 5 - I action brought by these Plaintiffs . Playtime Theatres Inc . v . City) of Tacoma , Ninth Circuit Court of Appeals No . 81 -3544 (Wright, Hug and Schroeder, Circuit Judges) (unpublished opinion I filed October 25 , 1982) . In May of 1980 , there were no theaters within the City of Renton which exhibited sexually explicit films . At the suggestion of a City of Renton hearing examiner , the Mayor suggested to the City Council that they consider the advisability of enacting zoning legislation dealing with adult entertainment land uses . (Exhibit 6) On March 5 , 1981 , the Planning and Development Committee of the City Council of the City of Renton held a meeting for the purpose of taking public testimony on the subject . ( CR 16 , page ' 3 ) While there is no record of that meeting, Mr . David R . Clemens , then=".the City' s . acting Planning Director who was present at the meeting, testified that the Superintendent of Schools , and the Manager of the Renton Chamber of Commerce spoke to concerns about adverse effects which adult entertainment uses would have upon the economic health of Renton' s businesses and upon children going to and from school . (CR 16 , page 3) He also testified that other citizens spoke generally about the adverse effects of such uses . (CR 16, page 3-4) Mr. Clemens further testified that he and his department reviewed the decisions of the Washington State Supreme Court in Northend Cinemas v. Seattle , supra , (which dealt specifically with adult motion picture theaters) and of the United States Supreme Court in Young_ v. American Mini Theatres , supra , (which dealt with adult entertainment uses in general) and I I - 6 - presented the information from their review to the Planning and Development Committee . (CR 16 , page 3 ; Supp . Excerpt of Record , tab B-1 , R .T . of David Clemens testimony of January 29 , 1981 , page 37-39 ) He indicated generally that review of those cases indicated that adult entertainment uses tend to decrease property values and increase crime . On April 6 , 1981 , the Planning and Development Committee of the City Council of the City of Renton recommended to the City Council that an appropriate zoning ordinance be written dealing with the subject of adult motion picture theaters . (Exhibit 7 ) On April 13 , 1981 , the Renton City Council enacted Ordinance No . 3526 , which contained the identical language of that portion of the Detroit zoning ordinance which was before the U . S . Supreme Court in the Young case (relating to the definition of an "Adult Motion Picture Theater" ) , see Young , at 53 , footnote 4 , and considered by the Washington State Supreme Court in Northend Cinemas . A copy of Ordinance No . 3526 is appended to this brief at page 47 . B . On January 26 , 1982 , Plaintiffs Filed a Civil Rights ( 42 U . S . C . section 1983 ) and Declaratory Judgment Action (28 U . S . C . section 2202) challenging Ordinance No . 3526 . On February 3 , 1982, Magistrate Sweigert recommended that the Motion For a Temporary Restraining Order be denied . On January 26, 1982 , Kukio purchased the Roxy Theater and the Renton Theater which are located across the street from each other . ( CR 1 , page 4 ) Neither of the Plaintiffs , although aware of the existence of the zoning restrictions imposed by Ordinance 7 No . 3526 , made any inquiry of other possible legal locations within the City of Renton for an adult motion picture theater . (Supp. Excerpt of Record, tab B-2, R .T. of deposition testimony of Roger H. Forbes , read into record at hearing on June 23 , 1982 , page 90, line 18 - page 91 , line 1 ) On or about January 27, 1982 , Kukio leased both theaters to Playtime . (CR 1 , page 4 ) The lease agreements provide that the premises were to be used "for the purpose of conducting therein adult motion picture theaters . " (CR 1 , page 4) It is undisputed that the two theaters are located in violation of the restrictions of the zoning code of the City of Renton as enacted by Ordinance No . 3526 , and as amended by Ordinance Nos . 3629 and 3637 . (Supp Excerpt of Record, tab B-2, R . T . of testimony of David R . Clemens on June 23, 1982 , page 61 , line 4 ) On January 20 , 1982, six (6) days prior to the '`closing of the purchase of the two (2) theaters , Plaintiffs filed an action in the United States District Court for the Western District of Washington at Seattle entitled "Complaint for Declaratory Judgment and Preliminary Injunction ," alleging federal jurisdiction under 28 U. S. C. section 1131 ( a) , 42 U. S. C . section 1983 and 28 U . S. C . section 2202 and Rule 57 of the Federal Rules of Civil Procedure , challenging the constitutionality of City of Renton Ordinance No . 3526 . In their original complaint which was verified by Roger H . Forbes , the sole owner of both corporations , Plaintiffs alleged under Forbes ' oath at page 4 , lines 28 , et sea . , that both theaters would "continuously operate exhibiting adult motion picture film fare to an adult public audience . " - 8 - On January 29 , 1982 , Plaintiffs moved for a temporary restraining order as ancillary relief under their original complaint . Following oral argument on that date , Magistrate Philip K. Sweigert announced orally, from the bench, that he would recommend the denial of the temporary restraining order . On February 3 , 1982 , U . S . Magistrate Sweigert filed his "Report and Recommendation" and proposed form of order in which he recommended to U .S . District Judge Walter T. McGovern that the request for a temporary restraining order be denied . C . On February 9 , 1982 , Playtime and Kukio filed an Amended and Supplemental Complaint in which they pleaded contradictory facts under oath , and changed the theory set forth in their original Complaint . On February 9 , 1982 , and before U . S. District Court Judge McGovern had formally ruled upon the motion for a temporary restraining order under the original Complaint , Plaintiffs filed and served a new Complaint entitled "Amended and Supplemental Complaint for Declaratory Judgment and Preliminary and Permanent Injunction . " In their new complaint which , this time , was verified by Jack R. Burns , Plaintiffs changed the theory of their pleadings to state , under Burns ' oath , that only "one of said theaters would continuously operate exhibiting adult motion picture film fare to an adult public audience . . . " , (CR 23, page 4 , lines 26-29) , and raised a new issue that under the City of Renton zoning code a conditional use permit must be applied for . This allegation was made despite the fact that at the hearing on the motion for a temporary restraining order on January 29 , 1982 , David R . Clemens , Director of Policy Planning of the City of Renton, had testified to a contrary administrative interpretation; - 0 - that is , that an adult motion picture theater was a permitted use under the zoning ordinance as administered by the City of Renton . (Supp . Excerpt of Record, tab B-1 , R.T. of David Clemens testimony on January 29 , 1981 , page 60 . ) D . On February 19, 1982 , the City of Renton filed a State Declaratory Judgment Action . On February 19 , 1982 , and prior to any substantial proceedings on the merits in the district court , the City of Renton filed a civil action in King County, Washington , Superior Court, entitled City of Renton v. Playtime Theatres, Inc . , et al . , No . 82-2-02344-2 , "Complaint for Declaratory Judgment" , seeking a declaratory judgment that Ordinance No . 3526 was constitutional as applied to the proposed use of the Renton and Roxy Theaters as alleged in Plaintiffs ' Amended and Supplemental Complaint . See Hicks v. Miranda , 422 U . S . 332 , at 348-350 ( 1975 ) . E . The City of Renton , filed its first Motion to Dismiss on February 22 , 1982 . On February 22 , 1982 (within the time allowed to file a responsive pleading in the federal lawsuit) the City of Renton filed a Motion to Dismiss the Plaintiffs ' "Amended and Supplemental Complaint for Declaratory Judgment and Preliminary and Permanent Injunction , " based upon the filing of the action in the state court for a Declaratory (judgment to resolve the controversy. ( CR 29) In its Motion to Dismiss and Memorandum of Points and Authorities in support thereof , the City of Renton advised the district court of the filing in the State Court of the action seeking a declaratory judgment to resolve the controversy - 10 - I between the City of Renton and Plaintiffs . (CR 30 ) The City of Renton argued : ( 1 ) That the U.S . Supreme Court had held in Huffman v . Pursue , Ltd . , 420 U . S. 592 , and in the subsequent related cases of Juidice v . Vail , 430 U . S . 327 ( 1977 ) ; Trainor v. Hernandez , 431 U.S . 434 ( 1977 ) ; Moore v. Sims , 442 U.S . 415 ( 1979 ) ; and Ohio Bureau of Employment Services v . Hodory , 431 U . S . 471 ( 1977 ) , that where the city ordinance was constitutional on its face and the civil rights issue involved important state civil interests , the federal claim must be presented to the state court in the first instance where that forum was available and the state had not waived its right to have the matter resolved in the state court . (See CR 30 , Point II , pages 11-14) ; and (2) That the state judiciary must be presented with an opportunity to consider and interpret the city ordinance and , if necessary , invoke a limiting construction (see CR 30 , Point I(B) , pages 8-10 ) because the federal court lacked jurisdiction authoritatively to construe such state legislation (see CR , 30 , Point IA, pages 6-8 ) , and that "the I federal complaint should be dismissed for failure to state a claim upon which federal relief can be based , upon abstention grounds , and for lack of jurisdiction to decide the controversy which has been pleaded . " (CR 30, page 16 , lines 24-26 ) . F . Plaintiffs filed a Petition to Remove the City of Renton's State Declaratory Judgment Action on March 8, 1982 . On March 8 , 1982 , Plaintiffs filed a petition to remove the state court action to federal court , entitled "City of Renton v . Playtime Theatres , Inc. , et al. , No . C82-263, Petition to Remove . " Thereafter , on March 12 , 1982 , the City of Renton filed its "Objection to Removal and Motion to Remand" the state Declaratory j Judgment action back to the state court . ( CR 52) G . The City of Renton' s first Motion to Dismiss was argued on March 12, 1982 . At the hearing before U . S. Magistrate Sweigert on March 12, 1982 , on the City of Renton ' s Motion to Dismiss , the City of - 11 - Renton argued that the federal court should abstain on the grounds expressed in Huffman v. Pursue, Ltd. , supra , and its progeny of cases . The City of Renton pointed out that , because of the peculiar circumstances relating to zoning "use" ordinances , it would not be able to present the statutory construction issue for resolution in the state court until it had occasion to apply the ordinance ; that it could not apply the ordinance until a theater had changed its course of conduct from regular film fare to something else , or the theater itself had raised that "prospective" use and the legal question in a lawsuit ; and that since these theaters had not changed their course of conduct but had raised the issue in a federal lawsuit , the City must be allowed to have those same issues authoritatively resolved in the state court system (R . T . for Mar . 12 , 1982 , at page 8 , line 15 through page 9, line 19 ) . Thereafter, U .S . Magistrate Sweigert orally ruled that the lawsuit was not presently governed by Huffman v . Pursue , Ltd . ( R . T . for Mar . 12 , 1982 , at page 18 , lines 1 -25 and page 41 , line 2 through page 42, line 7 ) . On March 25, 1982 , U . S. Magistrate Sweigert filed his "Report and Recommendation on Defendants ' Motion to Dismiss ," holding that "abstention under Younger-Huffman , (Younger v. Harris , 401 U. S . 37 , 27 L .Ed . 2d 669 , 91 S .Ct . 746 ( 1971 )) is neither required nor appropriate under these circumstances . " (CR 66 , at page 4, lines 14-15 ) . H . The City of Renton's Motion to Remand was heard on April 9, 1982 . Magistrate Sweigert stated in an oral opinion from the bench that the State Action should be remanded, but the State Declaratory Judgment lawsuit was not remanded until Janua ny 131 1983 . - 12 - On March 18 , 1982 , Plaintiffs filed a motion to dismiss the declaratory judgment state action which had been removed to the U .S. District Court . On April 9 , 1982 , Magistrate Sweigert heard the City of Renton's Motion to Remand the Declaratory Judgment state action and Plaintiffs ' Motion to Dismiss the state action . At the conclusion of the hearing, Magistrate Sweigert stated in an oral opinion from the bench that the state court action should be remanded and declined to dismiss the action. The state declaratory judgment action , however , was not remanded to the state court until January 13, 1983 . (CR 157) I . The City. of Renton enacted Ordinance No . 3629 as an emergency amending ordinance on May 3 , 1982 . On May 3 , 1982 , the City Council of the City of Renton enacted Ordinance No. 3629 , which amended Ordinance No. 3526 to incorporate the meaning which the City had argued in the district court on March 12 , 1982 could be given to the ordinance by a state court . (CR 97) The principle changes were : ( 1 ) The amending ordinance contained an elaborate statement of the reasons for enactment of both Ordinance No . 3526 and Ordinance No . 3629 ; (2) A definition of the word "used" was added; (3) Violation of the use provisions of the ordinance was declared to be a nuisance per se to be abated by a civil action and not by criminal enforcement; (4) The required distance of an adult theatre from a school was reduced from one mile to 1 ,000 feet ; and , (5 ) A severability clause was added . - 13 - The amending ordinance , No . 3629 , also contained an emergency clause and was to become effective as of the date of its passage and approval by the Mayor on May 3 , 1982 . (CR 97 ) A copy of Ordinance No . 3629 is appended to this brief at page 49 . J . The City of Renton filed a Renewed Motion for Dismissal and Motion for Summary Judgment . On May 4 , 1982, the City of Renton , filed a renewed Motion ' for Dismissal , and on May 27, 1982, a Motion for Summary Judgment under Fed . R . Civ. P. 56 with a supporting affidavit of David R . Clemens and a Memorandum in Support of such Motion . (CR 95-97) K . Judge McGovern denied the City of Renton's first Motion to Dismiss on May 5 , 1982. On May 5 , 1982 , U . S. District Judge Walter T . McGovern filed his order approving and adopting the March 25, 1982 Report and Recommendation of U .S. Magistrate Sweigert and denied the City of Renton's Motion to Dismiss . (CR 77 ) L . The City of Renton re-enacted Ordinance No . 3629 as �I a regular ordinance on June 14, 1982 . On June 14 , 1982 , the City Council of the City of Renton enacted a third ordinance , No . 3637 , which was identical to Ordinance No . 3629 in all respects except that the emergency clause was deleted and the ordinance was to become effective thirty (30) days following its publication . (CR 120 ) A copy of Ordinance No . 3637 is appended to this brief at page 56 . M . On November 5, 1982, Magistrate Sweigert recommended that the City of Renton's Motion for • Summary Judzment and Renewed Motion to Dismiss be denied, and that the Plaintiffs ' Motion for Preliminary Injunction be granted . - 14 - On June 23, 1982, U . S. Magistrate Sweigert heard the City of Renton' s renewed Motion to Dismiss plaintiffs ' amended complaint and its Motion for Summary Judgment as well as the Plaintiffs' Motion for Preliminary Injunction . On November 5 , 1982 , U . S . Magistrate Sweigert filed his "Report and Recommendation" and a proposed order: ( 1 ) Denying the City of Renton ' s Renewed Motion to Dismiss and Motion for Summary Judgment , and (2) Granting a Preliminary Injunction pending the conclusion of the litigation . (CR 142) N . The City of Renton filed a Petition for Writ of Mandate in the Court of Appeals on December 2 , 1982 . On December 2 , 1982 , the City of Renton filed a Petition for Writ of Mandamus and/or Writ of Prohibition in the Ninth Circuit Court of Appeals seeking an order directing remand of the state court Declaratory Judgment Action and requiring abstention and dismissal of the federal civil action filed by Plaintiffs in the district court on February 9, 1982 . (See CA 82-7721 . ) 0 . On December 9 , 1982, U . S. Magistrate Sweigert filed a Supplemental Report and Recommendation . On December 9 , 1982 , Magistrate Sweigert filed a Supplemental Report and Recommendation, which ( 1 ) recommended remand of the state court declaratory judgment action; and (2 ) re-examined the effect of Middlesex County Ethics Committee v. Garden State Bar Association , U . S. , 102 S .Ct . 2515 , 73 L .Ed . 2d 116 ( 1982) , decided after denial of Defendants' first motion to dismiss , on the continued validity of that ruling . (CR 151 ) - 15 - P . On January 13 , 1983 , Judge McGovern entered an Order approving U . S. Magistrate Sweigert' s Report and Recommendations . Plaintiffs commenced operation as an "adult motion picture theater" . On January 13 , 1983 , the district court filed an "Order Denying Defendants' Motions to Dismiss and for Summary Judgment and Granting Preliminary Injunction Pendente Lite" which: ( 1 ) approved and adopted the Report and Recommendation of U. S . Magistrate Sweigert; (2) granted Plaintiffs' Motion for Preliminary Injunction and enjoined enforcement of City of Renton Ordinance No . 3637 against the Plaintiffs ; (3) denied Defendants' Motion for Summary Judgment and Renewed Motion to Dismiss ; and (4) granted Defendants ' Motion to Remand and remanded the City of Renton ' s state court declaratory judgment action to the state court . (CR 157 ) From January 27 , 1982 through January 19 , 1983 , Playtime Theatres had operated both the Roxy Theater and the Renton Theater as general release motion picture theaters . On January 20 , 1983 , Playtime Theatres commenced showing sexually explicit films ( "Deep Throat" and "Devil in Miss Jones" ) at the Renton Theater and has continuously exhibited sexually explicit films since that date . Q . On January 24 , 1983 the City of Renton filed a Supplemental Pleading to its Petition for Writ of Mandate seeking a stay of the Preliminary Injunction issued on January 13 , 1983 . On January 24, 1983 , the City of Renton filed a supplemental petition in the Ninth Circuit Court of Appeals seeking additional relief in the form of a stay order on the preliminary injunction which the district court had issued on January 13, 1983 . (See CA82-7721 . ) - 16 - 1 1 I it 1 i R . The parties entered into a StiRulation to sever the 11 Plaintiffs' claim for damages , and to submit the I case for final determination upon the then existing i1 record . Hi On February 8 , 1983 , a "Stipulation and Order" was filed I severing the Plaintiffs' claim for damages , submitting the matter on the record and requesting an early hearing on the Plaintiffs' ' ' motion for a Permanent Injunction . (CR 159) The effect of this i stipulation was to close the evidence to be submitted to the II district court because " . . . the development of further I l I, i testimony . . .would not materially add to the evidence already i'' before the court relative to Plaintiffs' claims that Ordinance No . 3637 is unconstitutional . . . " (CR 159 , page 1 ) Il I I S . The Court of Appeals denied the City' s Petition for I' Writ of Mandate . I On February 10 , 1983 , the Court of Appeals (Hug and Skopil , Circuit Judges) denied the City' s Petition for Writ of Mandate (CA 11 I, 82-7721 ) on the grounds that the remand order of January 13 , 1983 , li had mooted that issue and that there were alternative means for 111 interlocutory review of the other issues . 11 i T . On February 17 , 1983 , the district court filed its 1 final Order , vacating the Preliminary Injunction as "improvidently granted", holding Renton Ordinance , il ! No . 3526 to be constitutional , and denying the motion for a Permanent Injunction . . On February 10, 1983 , the district .court heard final argument ; 1 on the Plaintiffs' Motion for a Permanent. Injunction . the district court entered its final On February 17 , 1983 , I; order reversing its decision to grant the Preliminary Injunction ;II and vacated the same as "improvidently granted" , and denied the ,il Plaintiffs' Motion for a Permanent Injunction. On February 18 , iI - 17 - 1983, the district court entered its judgment denying the City of Renton' s Motion to Dismiss for lack of jurisdiction and granting the City's Motion for Summary Judgment . (CR 168) On April 29 , 1983 , the district court entered an order denying Plaintiffs' motion to alter or amend the final order, and further denying a requested stay of the final order pending appeal of the order to the Ninth Circuit Court of Appeals . (CR 176) U . Notice of Appeal . Notices of Appeal were filed by Plaintiffs on May 10 , 1983 . (CR 187 ) III . THE STANDARD OF REVIEW BY THIS COURT IS THE "CLEARLY ERRONEOUS" TEST REQUIRED BY FED . R. CIV. P. 52(a) . The standard of review in this case is the "clearly erroneous" test under Fed. R . Civ. P . 52(a) . Appellants' arguments to the contrary ignore the recent decisions of this Court which state that review under the "clearly erroneous" test of Rule 52 ( a) " . . .must be afforded even where the trial is on depositions or stipulated facts . " United States v. Chesher , 678 F . 2d 1353 , 1358 , n . 3 ( 9th Cir . 1982 ) ; accord Steinsvik v . Vinzant , 640 F . 2d 949 , 951 (9th Cir. 1981 ) ; see generally Lundgren v . Freeman , 307 F . 2d 104 , 114-15 ( 9th Cir . 1962 ) ; see also Playtime Theatres , Inc . v. City of Tacoma, Ninth Circuit Court of Appeals No . 81-3544 (Wright, Hug and Schroeder , Circuit Judges) (unpublished opinion filed October 25, 1982) . - 18 - IV . THE PLAINTIFFS' APPEAL IS BASED UPON AN INCORRECT CONSTRUCTION OF THE STIPULATION . ENTRY OF THE DISTRICT COURT 'S FINAL JUDGMENT WAS APPROPRIATE . At Part IV of Appellant' s brief , the Plaintiffs argue that there are disputed issues of material fact which would make entry of summary judgment inappropriate under Fed . R. Civ. P . 56 . The Plaintiffs contend that they should be afforded an opportunity to present additional relevant and pertinent evidence . The Plaintiffs further contend that the stipulation which was entered into by the parties on February 8 , 1983 , was a stipulation of agreed facts in the case . Nothing can be further from the truth . The stipulation (CR 159 ) simply closed the evidence on the issue of Plaintiffs ' claim. In the stipulation , the parties recited as follows : " . . . the development of further testimony before the court would not materially add to the evidence already before the court relative to Plaintiffs claims that Ordinance No . 3637 is unconstitutional . . . " Based upon that recital of facts , the parties stipulated that : " . . . the matters should be set for hearing by the court. at the earliest available date . At such hearing , the matters shall be submitted to the court based upon the live testimony, affidavits , deposition testimony and exhibits previously heard and considered by Magistrate Sweigert at the hearings held relative to Plaintiffs ' motions for temporary restraining order and preliminary injunction and Defendant ' s motions to dismiss Plaintiffs' complaint and for summary judgment . "3 . At such hearing , each of the parties reserve the right to argue their theory of the facts and law to the court . " (CR 159 , page 2) A copy of the Stipulation and Order is appended to this brief at page 63 . - 19 - The stipulation , which was drawn by counsel for the Plaintiffs , was merely a stipulation that all of the evidence had been submitted, and that the issues were ready for decision by the district court following the argument of counsel . Plaintiffs were apparently surprised when the district court changed its mind and vacated the previously "improvidently granted" Preliminary Injunction and entered final judgment against them based upon its review of the record . However , such surprise is no excuse for their argument that ( 1 ) the findings as found by the Magistrate were a "basis" for the stipulation between the parties ; and (2) that when the "findings" were changed, that the Plaintiffs should then be allowed to present additional evidence . All parties had previously stipulated that there was no further evidence which could be adduced to bear upon the issues before the court . Both sides had closed their presentation of evidence and were proposing to submit the case to the court for decision following final argument , although the parties vigorously contended for different findings of fact and conclusion of law to be drawn from the record . After the entry of the district court' s order and judgment on February 18 , 1983, counsel for the City of Renton requested the district court to alter the judgment pursuant to Fed . R . Civ. P . 60(a) to correct a "clerical error" by deleting reference to the granting of summary judgment , and to characterize the opinion as a ruling on the merits following the trial of all issues . By letter dated March 1 , 1983 , the district court declined to alter the original ruling . (Copies of the City's request and the district - 20 - court's response are appended to this brief at pages 66-68 . ) The district court insisted that ( 1 ) summary judgment was appropriate on the record before the court , and (2) that , under the authority of Starsky v. Williams , 512 F. 2d 109 (9th Cir. 1975 ) , entry of summary judgment was appropriate in the light of the parties stipulation to the close of evidence . This case is very like Starsky v. Williams , supra, where the trial court granted summary judgment under Fed . R. Civ. P . 56 . There the parties made extensive use of pre-trial discovery pro- ceedings to develop a complete record . This Court found that , in effect , the parties had agreed to try the case upon "affidavits , admissions and agreed documents . " at 113 . Therefore , the district court " . . .was free to decide all issues . . .and, in so deciding, to resolve factual issues . " At 111 . Southwest Forest Industries Inc . v. Westinghouse Electric Corporation , 422 F . 2d 1013, 1017-18 (9th Cir . 1970) ; cert . den . 400 U .S. 902 , 91 S .Ct . 138 , 27 L .Ed . 2d 138 ; Glaspey e v. Norris , 231 F . 2d 881 (9th Cir . 1956 ) . Therefore , the district court's alternative bases for ruling in favor of the City are correct . The Plaintiffs are bound by their stipulation that there is no additional relevant evidence it which could be presented to the district court bearing upon the Plaintiffs' claims that the ordinance is .unconstitutional . V . THE FINDINGS OF FACT INCLUDED WITHIN THE DISTRICT COURT 'S WRITTEN OPINION ARE NOT "CLEARLY ERRONEOUS" AND � ARE SUPPORTED BY THE RECORD . In Part V of the Appellants ' brief , the Plaintiffs argue that the district court made certain findings of fact which were it - 21 - j, "clearly erroneous" and not supported by the record . A . Plaintiffs' first claimed erroneous finding is a misstatement of the district court's finding . The district court found at page 6 , line 1 , that : "No theater had to be closed under Renton's ordinance , for no theaters were operating or were considering operating when it was enacted . " (CR 167) This finding is absolutely true . Ordinance No . 3526 was adopted on April 13, 1981 , (CR 16 , page 5) more than nine (9) months prior to the time that Plaintiffs purchased the Renton and Roxy Theaters and began the instant litigation on January 20, 1982 . (CR 1 ) B . Plaintiffs next claim that the district court ' s finding that there are 520 acres of land available for development as an adult theater is unsupported by the affidavit and testimony of David Clemens . The affidavit of David Clemens , (CR 97, page 2 , line 19) states as follows : "The total area within the solid colored areas [the land available for development as an adult motion picture theater] is 520 acres . Included in the 520 acres is 27 acres of City property, 22 acres as a green belt area I' and 5 acres as a proposed fire station site . " See also the transcript of Mr . Clemen ' s testimony on June 23 , 1982 . (Supp . Excerpt of Record, tab B-2, pages 51-62) Under Starsky v . Williams , supra , the district court was entitled to resolve factual issues presented by the evidence as submitted, including the suitability of the sites for development . Plaintiffs ' claims of inconvenient access are rebutted by the testimony of Roger H . Forbes , the sole shareholder, director and officer of both corporate Plaintiffs . At his deposition taken on May 27 , 1982, Mr. Forbes testifed that one of his most profitable - 22 - adult theaters was the Point Roberts Theater . Point Roberts is a tiny village , population approximately 250 persons , located on an ithsmus of land separated from the mainland of the State of Washington and bounded on the North by the Canadian border . By Mr . Forbes' own statement , patrons from Vancouver , B . C . , must drive for "20 minutes , 25 minutes , 30 minutes . Some place in there , " to view adult motion picture films exhibited by the Plaintiffs . (Supp . Excerpt of Record , tab B-2 , R .T . of deposition testimony of Roger H. Forbes read into record at hearing on June 23 , 1982 , page 92, line 11 ) . Therefore the district court' s finding of available sites for development of an adult motion picture theater cannot be said to be "clearly erroneous" . C . The Plaintiffs argue that it was improper for the ' district court to find that "observed affects in nearby cities provides persuasive circumstantial evidence of the undesireable secondary affects" of adult motion picture theaters , (CR 167, page 10 , line 16) and that the City' s concern was the prevention of these undesirable secondary effects (CR 167, page 11 , line 10) . These findings by the district court are founded upon the actual finding by the City Council of the City of Renton that : "experience in numerous other cities , including Seattle , Tacoma and Detroit , Michigan , has shown that the location of adult entertainment land uses degrade the quality of the area of the city in which they are located and cause a blighting effect upon the city. The skid row effect , which is evident in parts of Seattle and other cities , will have a significantly larger effect upon the City of Renton than other major cities due to the relative sizes of the cities . " Ordinance 3637, page 3, finding number 14) . - 23 - See also Affidavit of Gary F . Kohlwes , Superintendent of Renton School District (CR 15) ; Affidavit of David R . Clements , Policy Development Director of the City of Renton (CR 16 ) . The Plaintiffs erroneously contend that the City must conduct a study and gather expert testimony and empirical evidence before it can enact an adult use zoning ordinance . Contrary to that contention, identical ordinances need not be tested anew each time such an ordinance is enacted by a different governmental entity . Genusa v . City of Peoria , 619 F . 2d 1202 ( 7th Cir . 1980 ) . As recently pointed out by this court: "Enactment of a zoning ordinance is a legislative act , Eastlake v. Forest City Enterprises , Inc . , 426 U . S. 668 , ..73-674 ( 1976 ) , Kuzinich v. County of Santa Clara , 689 F . 2d 1345 (9th Cir. 1982 ) , and great latitude is given to legislative bodies in the procedures they may use in factfinding . " Ebel v. City of Corona , 698 F .2d 390 , 392-3 (9th Cir . 1983) . There is no constitutional requirement that each successive city independently establish the effect of the deleterious land use . See City of Whitaker v. Walnut Properties , Inc . , 139 Cal . App . 3d 618 , 189 Cal . Rep . 12 ( 1983 ) where the California Court of Appeals , Second District , Division IV , held on this identical issue , at page 18 : "The city must buttress its assertion with evidence that the state interest has a basis in fact and that the factual basis was considered by the city in passing the ordinance . ( Avalon Cinema Corporation v . Thompson , supra , 667 F .2d 659 , 661 . However , identical ordinances need not be tested anew each time they are enacted by a different governmental entity by establishing the actual existence of local conditions which would justifyit . " . . . lawmakers in one local [should not be denied] the benefit of the wisdom and experience of lawmakers in - 24 - another community , no matter how similar the circumstances . . . . " (See County of Sacramento v . Superior Court Goldies Book Stores , Inc. , 137 Cal App . 3rd 4413 , 454-455 , 187 Cal . Rep . 154 ( 1982 ) ) . "The factual basis behind certain types of certain zoning laws, insofar as those zoning laws require dispersal or deconcentration , has been developed by testimony in other cases . Sociologists and urban planners have testified that a concentration of adult movie theaters in limited areas leads to the deterioration of surrounding neighborhoods . (See Young v. American Mini Theaters , supra , 427 U .S. 50 , at page 80 , 96 S . Ct . 2440 , at page 2457 , 49 L . Ed . 2d 310 ) . This testimony is sufficient and the city need not bring their own sociologist to apply these observations to the City of Whitaker . " In view of the fact that the Renton City Council had before it the same "model" zoning ordinance which was at issue in Northend Cinemas , Inc . v. City of Seattle , 90 Wn . 2d 709 , 535 P . 2d 1153 ( 1978 ) , and Young v. American Mini Theaters , 427 U .S . 50 , 96 S . Ct . 2440 , 49 L .Ed . 2d 310 ( 1976 ) , it had every right to take notice of the findings of the trial court and the conclusions of law of the Washington State Supreme Court and the United States Supreme Court , upholding those findings . See in this regard , Weiner v. Mitchell , et al . , 114 Cal . App . 3d 35 , 170 Cal . Rep . 533 , where the California Court of Appeals , Second District , Division 3 , stated : " . . .we hold that it was proper for the trial court and it is proper for us . . . to take appropriate judicial notice of both the pertinent facts stated in the appellate opinion and of the , judgment in the aforementioned U .S . v. Weiner, supra , 578 F . 2d 757 (Cf Estate of Guerin , ( 1961 ) 194 Cal . App. 2d 566 , 569 , 15 Cal. Rptr . 512) ." at 537 . The Supreme Court of the State of Washington , in Northend Cinemas , Inc. , supra, stated at 1195 : - 25 - . . . the record is replete with testimony regarding the effects of adult movie theater locations on residential neighborhoods . The evidence is more than adequate to support the finding below that the goal of the ordinance is to preserve the character and quality of residential life in the city. . . " . . .we conclude the city' s paramount interest in protecting, preserving, and improving the character and quality of its residential neighborhoods is sufficient to justify this non-discriminatory zoning regulation of the location of adult movie theaters . " Governmental bodies are not required to re-invent the wheel countless times over when mere access to common knowledge would render the considerable effort involved unnecessary . County of Sacramento v. Superior Court , 137 Cal . App. 3d )448 , 187 Cal . Rep . 154 ( 1982) . Testimony before the City Council consistently noted the adverse impact upon neighborhoods and businesses when an adult entertainment land use was situated in close proximity to residences , schools , churches , public or quasi-public uses , and businesses . (CR 16 , pages 3-4 ; Supp . Excerpt of Record, tab B- 1 , R . T . of testimony of David R . Clemans on January 29 , 1982 , pages 30-40 ) From this testimony the City Council was justified in drawing the findings made by it and expressed in the preamble to Ordinance Nos . 3629 and 3637 . The district court's finding of observable undesirable secondary affects of adult motion picture theaters is grounded in the record and is based upon the common sense understanding by the City Council of the City of Renton of the deleterious effects which were to be avoided by the enactment of this legislation. D . Plaintiffs further claim that the district court' s finding that the enactment of the Ordinance was not motivated by hostility toward protected speech (CR 167 , page 11 , line 8 ) was _ _ contrary to the weight of the evidence . On the contrary, there was no evidence before the district court to indicate any improper motive on the part of the City . In other cases where courts have found an improper motive , the record has reflected that action was taken to regulate adult theaters after application was made for a development permit for such a theater , Kuzinich v. County of Santa Clara , 683 F . 2d 1345 ( 9th Cir . 1982 ) ; Avalon Cinema Corp . v . Thompson , 667 F . 2d 659 ( 8th Cir . 1981 ) , or the record has contained evidence of overt intentions of the city officials to frustrate development of an adult theater, Tovar v. Billmeyer , F . 2d (9th Cir . No . 82-358 , decided December 15 , 1983 ) , or to completely proscribe protected expression within the city . Schad v . Borough of Mt . Ephraim, 452 U.S 61 , 101 S. Ct . 2176 , 68 L . Ed . 2d 671 ( 1981 ) ; Keego Harbor Co; v. City of Keego Harbor , 657 F .2d 94 ( 6th Cir . 1981 ) ; Basiardanes v. City of Galveston , 682 F . 2d 1203 ( 5th Cir . 1983 ) . No such intent existed on the part of the officials of the City of Renton . For that reason , Plaintiffs were unable to adduce any evidence before the district court to ,I establish such an improper motive . On the contrary, the district court approved the City Council ' s predominant concern over the " . . . evidence of adult land uses ' effects in nearby cities ." (CR 167, page 12, line 1 ) The ordinance was adopted after a period of study of eleven ( 11 ) months , and after public hearings at which comments from the general public were received . Furthermore , the ordinance was adopted at a time when no adult theaters were in existence in the City of Renton . These facts clearly militate against any - 27 - inference of improper motive on the part of the City Council in the enactment of the zoning ordinance . The record here must be compared with the record in Tovar , supra , a case recently decided by this Court in which ( 1 ) the City Council adopted a new interpretation of a zoning ordinance; (2) ordered that a building permit for an adult theater be denied before application was made ; ( 3 ) the Mayor testified at his deposition " . . . that the primary purpose of the City Council ' s zoning decision was to prevent Plaintiff's theater from operating in Pocatello" ; (4) the Mayor' s deposition testimony further indicated that he called a special meeting of the City Council without notice , before the theater operator had opportunity to apply for the required permits and license " . . .to see what the City Council could do about getting the . . . theater out of Pocatello" ; and , (5) members of the City Council testifed that there had never been another instance in which the City Council had held a meeting to deny a building permit , and that "under most circumstances , it would be improper for the Council to act in such a way" . Tovar , supra , at 5850-1 . As also recently reiterated by this Court in Ebel v. City of Corona , 698 F .2d 390 (9th Cir . No . 82-5056 , decided February 1 , 1983) , " [e]nactment of 'a zoning ordinance is a legislative act , Eastlake v. Forest City Enterprises , Inc . , 426 U.S . 668 , 673-674 ( 1976) , Kuzinich v. County of Santa Clara , 689 F .2d 1345 (9th Cir . 1982) , and great latitude is given to legislative bodies in the procedures they may use in factfinding ." at 392-3 . - 28 - Neither does the fact that the ordinance focuses only upon adult theaters to the exclusion of other adult uses implicate any hostility toward protected speech . The fact that other adult business might have been included in this zoning effort but were not does not create an arbitrary or illegal classification . Northwestern Laundry v. Des Moines , 239 U.S . 486, at 495 , 60 L. Ed . 396 ( 1915) . The City is under no obligation to correct all of the evils perceived at one time and in one enactment . City of New Orleans v. Dukes , 472 U .S. 297 , 96 S.Ct . 2513 , 49 L .Ed . 2d 511 ( 1976 ) ; Katzenbach v. Morgan , 384 U .S. 641 , 675 , 86 S .Ct . 1717 , 16 L . Ed . 2d 828 ( 1966) (Brennan, J . ) . E . Finally, the Plaintiffs casually challenge the district court ' s finding that the enactment of the ordinance is only "minimally intrusive" upon protected expression (CR 167 , page 12, line 23) . The finding of "minimal intrusion" is the linch pin which undergirds the decision in Young . As discussed previously at pages 22-23 , ample areas for location of an adult theater exist within the City of Renton under the regulation imposed by the ordinance . ( CR 97 , page 2 ; Supp . Excerpt of Record , tab B-2 , R .T . of testimony of David R . Clemens on June 23, 1982, page 51-62) Furthermore , the area available within the City of Renton for development of an adult theater is much . greater than in the City of Seattle . The City of Renton , with a total area of 9 , 632 acres (CR 16, page 2, line 26 ) has 520 acres available for development . The City of Seattle , with a total area of 56 , 320 acres , has only an area of 250 acres in which an adult motion picture theater may - 29 - be located in conformity with the zoning code . (CR 16 , page 6 , line 16) Finally, access to protected expression is readily available to the residents of the City of Renton through adult motion picture theaters , many of which are operated by these Plaintiffs , located in the City of Seattle and throughout King County . (CR 16 , page 7 , line 1 ) Therefore , the district court correctly found that Ordinance No . 3526 , as amended , had avoided the pit falls of Schad v . Borough of Mt . Ephraim, 452 U . S . 61 ( 1981 ) , and Keego Harbor Co . v . City of Keego Harbor , 657 F . 2d 94 ( 6th Cir . 1981 ) , [where protected expression was actually excluded from the City, ] and Basiardanes v . City of Galveston , 682 F .2d 1203 (5th Cir . 1982 ) , [where the available sites for development were so inconvenient and undesirable that the court found a de facto exclusion from the city] . Justice Powell noted in his concurring opinion in Young : "The constraints of the ordinance with respect to location may indeed create economic loss for some who are engaged in this business . But in this respect they are affected no differently than any other commercial enterprise that suffers economic detriment as a result of land-use regulation . The cases are legion that sustained zoning against claims of serious economic damage . ( citations omitted) " "The inquiry for first amendment purposes is not concerned with economic impact ; rather, it looks only to the effect of this ordinance upon freedom of expression . " At 78 - 79 . The City of Renton is not required to provide developed "turn-key" property for the Plaintiffs to occupy in the exhibition of their film fare . Such a preposterous notion would not be - 30 - advanced even by a newspaper publisher who would be required to locate his printing operation in conformity with zoning restrictions of the city . The district court found at page 6 , line 17 : 1 "The effect of Renton ' s ordinance is plaintiffs or others wishing to exhibit adult film fare and not having 1 a theater already built and ready for occupancy , must consider whether the demand is such that construction of a theater is feasible . This impact is no different than that upon other land users who must work with what land is available to them in the City . With a large percentage of land within the City available to plaintiffs , the financial feasibility of the various locations is for them to analyze . To conclude otherwise would be to place a burden on the city that Constitutional analysis does not require . Moreover , the message of no individual or group has been silenced . The number of such establishments has not been reduced because none existed and none were attempting to establish themselves in Renton prior to the ordinance . The ordinance merely specifies where adult theaters may not locate and in doing so , stifles no expression . ( citation omitted) . " (CR 167) Therefore , the opinion of the district court below and the findings of fact expressed therein are not erroneous in any respect and are fully supported by the record . Under the rule set forth in U . S. v . U . S. Gypsum Co . , 333 U .S. 364 , 68 S .Ct . 525 , 92 ; I L . Ed . 746 ( 1948 ) , for definition of the term "clearly erroneous" , this Court cannot find , after review of the entire record , that it " . . . is left with the definite and firm conviction that a mistake has been committed . " ( emphasis added) . Upon review by this Court , the findings of the district court are binding upon this Court and must control the disposition of this appeal . Fed. R . Civ. P . 52(a) . - 31 - VI . THE DISTRICT COURT DID NOT SHIFT THE BURDEN OF PROOF TO THE PLAINTIFFS TO SHOW A SUBSTANTIAL IMPOSITION ON FIRST AMENDMENT PROTECTED EXPRESSION . Part VI of the Appellants' brief argues that the district court improperly shifted to the Plaintiffs the burden of proving that the ordinance had no more than an "incidental impact" upon First Amendment protected expression . The argument is based upon the district court ' s reference in its opinion to a lack of evidence showing that secondary effects of adult land uses in the City of Renton would be different or lesser than in surrounding cities . (CR 167, page 10, line 7 ) . This reference in no way effects the burden of proof. The district court simply found, based upon all of the evidence before the court , that potential adult theaters , including the Plaintiffs' , were " . . . not virtually excluded from Renton. . . " (CR 167, page 7, line 11 ) . Compare Basiardanes v. City of Galveston , 682 F . 2d 1203 (5th Cir . 1982) . The burden of proof imposed upon the City to establish no more than "minimal intrusion" upon protected expression was borne by the City. Plaintiffs voluntarily incurred their substantial investment in the Renton and Roxy Theaters with knowledge that the use to which they proposed to put the theaters was a violation of the zoning code of the City of Renton . Plaintiffs made no effort to bring their land use into conformity with the zoning code of the City of Renton by exploration of alternative locations within the ' City where an adult motion picture could legally be located . (Supp . Excerpt of Record , tab B-2 , R .T . of deposition testimony of - 32 - Roger H . Forbes , read into record at hearing on June 23 , 1982 , page 90 , line 17 - page 91 , line 1 ) The district court 's finding that a significant portion of the City of Renton is available for development as an adult motion picture theater is supported by substantial evidence and is unassailable on this appeal . Therefore, the self-inflicted economic burden which the Plaintiffs have assumed by their actions do not create a defect in the zoning 1 regulation of protected speech in the City of Renton. The district court properly assessed the burden of proof in making the decision complained of . VII . THE RENTON ZONING ORDINANCE DOES NOT CREATE A STATUTORY CLASSIFICATION THAT IS NOT RATIONALLY RELATED TO A VALID PUBLIC PURPOSE OR NECESSARY TO THE ACHIEVEMENT OF A "1 COMPELLING GOVERNMENTAL INTEREST . In Part VII of the Appellants ' Brief, the Plaintiffs raise the argument , discarded in Young v. American Mini Theaters , supra, that zoning ordinances such as in Young, Northend Cinema , Tacoma and Renton are constitutionally defective under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment in that a classification of theaters is made upon the basis of the content of the films shown, and that adult motion ' picture theaters are treated differently from other theaters showing films protected by the First Amendment . The Renton ordinance does not infringe on rights of free speech and equal protection for the reason that the ordinance has only a slight or neutral effect on protected speech . The ordinance regulates only the place where films may be shown based upon the finding by the City Council that the public welfare is - 33 - best supported by location of these uses , and the secondary affects that flow therefrom, in certain parts of the community. The ordinance places no restriction on the content of movies that are shown once the theater is placed in the appropriate location . As in Young, no censorship is involved; nor is the ordinance a disguised form of censorship . While the classification is based upon content , it is done only for the legitimate purpose of regulation of the place of exhibition in the interest of preventing deleterious secondary effects of such theaters in the family-oriented areas of the City of Renton . This slight or neutral effect is clearly justified by the City's interest in the preservation of the quality of its family- oriented neighborhoods through effective land use planning . Ultimately , that is one of the fundamental obligations of a municipal government to the residents of the city . See Village of Belle Terre v. Borass , 416 U .S. 1 , 94 S.Ct . 1536 , 39 L .Ed . 2d 797 ( 1974 ) . This function , and experimentation with alternative solutions to this "admittedly serious problem" is likewise to be accorded high respect . Young, at 71 . Therefore , there being a rational relationship between the classification and the attainment of the valid public purpose and compelling governmental interest , the zoning scheme as established under the ordinance falls within the protection of the decision of Young . - 34 - VIII . PLAINTIFFS CITE NO AUTHORITY FOR THE PROPOSITION THAT A FAILURE TO INCLUDE OTHER ADULT BUSINESSES WITHIN THE SCOPE OF THE ORDINANCE IS A DENIAL OF EQUAL PROTECTION . Part VIII of the Appellants' Brief argues that the ordinance constitutes a denial of equal protection for the reason that the ordinance singles out adult theaters for regulation without dealing with other land uses which may have similar operational characteristics . However , Plaintiffs do not cite a single case to establish such rule . In fact , the rule is to the contrary . The fact that other adult businesses might have been included in this ordinance but were not does not create an arbitrary or illegal classification . Northwestern Laundry v. Des Moines , . 239 U .S . 486 , at 495 , 60 L. Ed . 396 ( 1915 ) . The City is under no obligation to correct all.,._ of the evils perceived at one time and in one enactment . City of New Orleans v. Dukes , 472 U.S . 297 , 96 S. Ct . 2513, 49 L . Ed . 2d 511 ( 1976 ) ; Katzenbach v. Morgan , 384 U . S . 641 , 657 , 86 S .Ct . 1717 , 16 L .Ed . 2d 828 ( 1966 ) (Brennan , J . ) . it In any event , the regulation of stores selling films protected by the First Amendment for non-commercial exhibition in the privacy of a residence , could implicate serious questions involving the right of privacy which need not be raised , nor discussed in the context of the zoning regulation of adult motion picture theaters which hold themselves out for commercial and public exhibition of sexually explicit films , as is the case with the proposed land use of the Plaintiffs . See Stanley v. Georgia , 394 U . S. 557 , 89 S .Ct . 1243 , 22 L .Ed . 2d 542 ( 1969 ) , as to the - 35 - right to view even obscenity in the home under the right of privacy. 1 The district court correctly construed the ordinance under the four-part test set forth in United States v. O 'Brien , 591 U. S . 367 , 88 S .Ct . 1673 , 20 L .Ed . 2d 672 ( 1968) . First , enactment of the zoning ordinances is within the police power of the City of Renton . The City of Renton has the power to regulate zoning H within the City of Renton , and to declare what shall be a nuisance . R .C .W. 35A .63 . 100; 35A . 11 .020 ; 35 . 22 . 280 . Secondly, as noted by Justice Powell in Young, the interest furthered by the adoption of the zoning ordinance is important and substantial , and " . . . is perhaps ' the most essential function performed by local governement , for it is one of the primary means by which we protect that sometimes difficult to define concept of quality of life ' . Village of Belle Terre v. Borass , 416 U . S . , at 13 , 94 S. Ct . , at 1543 (Marshall , J . , dissenting) . " Youn E, at 80 . Thirdly, the district court properly found that the governmental interest asserted by the City of Renton was entirely unrelated to suppression of free expression . The zoning ordinance was enacted over nine months before the Plaintiffs announced their intention to operate an adult motion picture theater within the city, and after a period of study which gre-dated the enactment of the ordinance by nearly another year . Based upon its review of the record , the district court found that "the governmental interest is unrelated to the suspression of free expression . . . " (CR 167, page 11 , line 8) . - 36 - Finally, the incidental restriction upon Plaintiffs ' claimed First Amendment rights is not greater than essential . The area of restriction is the family-oriented areas of the City. The "use" which is proscribed within that area is a "continuing course of conduct" of commercial exhibition of depictions of sexual conduct in a manner which appeals to a "prurient interest" . Incidental or H " innocent" exhibitions of sexually explicit material are not regulated by this ordinance . Only the continuous commercial exhibition of sexually explicit material is regulated in order to carefully accomplish the prevention of deleterious secondary affects which have been observed in other cities , and to protect the quality of life enjoyed by the residents of the City of Renton . IX . THE DEFINITION OF "USED" IS NOT IMPERMISSIBLY VAGUE IN VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION . Plaintiffs have argued in Part IX of Appellants' Brief that the definition of the word "used" enacted in Ordinance Nos . 3629 and 3637 is unconstitutionally vague . The definition is as follows : "The word ' used ' in the definition of ' Adult motion picture theater' herein, describes a continuing course of conduct of exhibiting ' specified sexual activities ' and ' specified anatomical area[ s' ] in a manner which appeals to a prurient interest . " Ordinance No . 3637 , page 6, appended to this brief at page 56 . In reviewing the definition three elements appear: ( 1 ) a continuing course of conduct; (2) of exhibiting "specified sexual activities" and "specified anatomical areas" ; ( 3 ) in a manner which appeals to a prurient interest . - 27 - "Continuing course of conduct" is not vague with respect to these Plaintiffs because they admit that their exhibition of "specified sexual activities" and "specified anatomical areas" in sexually explicit films. has been continuous since January 20 , 1983 . See Answers to Interrogatories and Requests for Admission filed by Plaintiffs in the state court enforcement action and appended to this brief at pages 69-74 . For each of the films listed in answer to Request for Admission No . 10 , appended at page 69 of this brief , the Plaintiffs admitted that the films were "distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual conduct and exhibition of specified anatomical areas . " Answer to Request for Admission No . 12( d ) , appended at page 74 of this brief . The identical answers with respect to all other films referred to the Answer to Request for Admission No. 10 are omitted for sake of brevity. Plaintiffs admit to having exhibited material characterized by an emphasis on " specified sexual activites" and "specified anatomical areas" since January 20 , 1983, continuously to the date of the answer to interrogatories (such exhibition has continued to the date of filing of this brief) . "Specified sexual activities" and "specified anatomical areas" , as defined in the Renton ordinance , are taken verbatim from definitions approved in Young,. supra, at footnote 4 , page 53 . Plaintiffs' arguments against the "continuous course of conduct" clause are conclusively dealt with in Young, supra, where the court rejected "vagueness" claims against the Detroit - 38 - Ordinance by application of the rule of law expressed in Erznoznik v . City of Jacksonville , 422 U .S. 205 , at 216 , 95 S .Ct . 2268 , 45 L. Ed . 2d 125 ( 1975) , that "if the statutes' deterrent affect on legitmate expression is not 'both real and substantial ' and if the statute is ' readily subject to a narrowing construction by the state courts'" then the litigants would not be "permitted to assert the rights of third parties" in the abstract . See also Village of Hoffman Estates v. Flipsidei Hoffman Estates , Inc . , 455 U.S . 489 , 102 S. Ct . 1186 , 71 L . Ed. 2d 362, 369 ( 1982) . The Young court , at 58, states as follows : "We find it unnecessary to consider the validity of either of these arguments in the abstract . For even if there may be some uncertainity about the affect of the ordinances on other litigants they are unquestionably applicable to these respondents . The record indicates that both theaters proposed to offer adult fare on a regular basis . Neither respondent has alleged any basis for claiming or anticipating any waiver of the restriction as applied to its theater . It is clear , therefore , that any element of vagueness in these ordinances has not affected these respondents . To the extent that their challenge is predicated on inadequate notice resulting in a denial of procedural due process under the Fourteenth Amendment , it must be rejected . Cf . Parker v . Levy , 417 U . S . 733 , 754-777 , 94 S . Ct . 2547 , 41 L . Ed . 439 . "Because the ordinances affect communication protected by the First Amendment , respondents argue that they may raise the vagueness issue even though there is no uncertainty about the impact of the ordinances on their own rights . On several occasions we have determined that a defendant whose own speech was unprotected had standing to challenge the constitutionality of a statute which purported to prohibit protected speech or even speech arguably protected . This exception from traditional rules of standing to raise constitutional issues has reflected the Court ' s judgment that the very existence of some statutes may cause persons not before the court to refrain from engaging in constitutionally protected speech or expression . See Broadrick v . Oklahoma , 413 U. S. 601 , 611 -614 , 93 S . Ct . 2906, 37 L .Ed . 2d 830 . The exception is justified by the overriding importance of maintaining a free and open market for the - 39 - interchange of ideas . Nevertheless , if the statutes deterrent effect on legitimate expression is not ' both real and substantial , ' and if the statute is ' readily subject to a narrowing construction by the state courts , ' see Erznoznik v. City of Jacksonville , 422 U . S. 205 , 216 , 95 S . Ct . 2268 , 2276 , 45 L . Ed . 2d 125 , the litigant is not permitted to assert the rights of third parties ." (emphasis added) The last element of the definition of "used" is the requirement of exhibition in a "manner which appeals to a prurient interest" . The term "prurient" is the specific point of attack by Plaintiffs . "Prurient interest" has a specific meaning. Roth v. U . S. , 354 U. S. 476 ( 1957 ) . This Court recently reaffirmed the definition of "prurient iterest" in the case of J-R Distributors , Inc . v . Eikenberry, F .2d (9th Cir . No . 82-3441 , decided February 6 , 1984) , where it stated: "We agree with these decisions and reaffirm that , under the first-prong of the Miller test , a 'prurient interest' is ' a shameful or morbid interest in nudity, sex or excretion' . " Slip opinion, at page 20 . Each of the elements of the word "used have specific and definite meanings under the law or as applied to Plaintiffs . The definition is not impermissibly vague under the First and Fourteenth Amendments to the United States Constitution. X . THE ORDINANCE DEFINITION OF "ADULT MOTION PICTURE THEATER" IS NARROWLY DRAWN AND IS NOT OVERBROAD . In Part X of Appellants ' Brief, the Plaintiffs argue that the ordinance is overbroad and has a tendency to "chill" the First Amendment rights of others , notably the Renton Public Library which is operated by the City of Renton . Plaintiffs argue that the definition of "specified anatomical areas" could bring the collection of legitimate literature at the Renton Public Library - 40 - within the definition of an "adult motion picture theater" if any portion of that collection were devoted to depictions of sexually oriented materials . This argument is specious in view of the requirement that the material be "distinguished or characterized by an emphasis on matter depicting , describing or relating to ' specified sexual activities ' or ' specified anatomical areas' . . . for observation by patrons . . . . " Ordinance No. 3526 The further restrictive definition applied to the word "used" which was adopted by Ordinance No . 3629 requires that the depiction of "specified sexual activities" or "specified anatomical areas" be exhibited as a "continuing course of conduct" and "in a manner which appeals to the prurient interest . " Ordinance No . 3629 . Therefore , the definition of "adult motion picture theater" is narrowly drawn and does not sweep within its ambit legitimate establishments which are not proper subjects for regulation under the ordinance . XI . THE RENTON ZONING CODE DOES NOT CONSTITUTE A PRIOR RESTRAINT UPON EXHIBITION OF SEXUALLY EXPLICIT MATERIALS WITHOUT A GUARANTEE OF PROCEDURAL SAFEGUARDS . In Part XI of the Appellants ' Brief, the Plaintiffs argue that the Renton zoning code constitutes a prior restraint because it requires the exhibitor of sexually explicit film fare to request a "special use" zoning change before locating an "adult motion picture theater" in the business district of the City . Plaintiffs' argument is founded upon their misconstruction of the zoning code in that they assert that there is no zone - 41 - classification within the City of Renton where an "adult motion picture theater" may locate as a matter of right . It is true that at the time of the institution of this lawsuit and Plaintiffs ' threat to commence a land use as an "adult motion picture theater" that the B-1 (business) zone did not list a motion picture theater as an expressly permitted use . However , that does not of necessity indicate that Plaintiffs are required to obtain a conditional use permit to operate an "adult motion picture theater" (or any motion picture theater) in the B-1 or more intensive land use zones within the City of Renton . The evidence before the district court established at the very first hearing before the Magistrate on Plaintiffs ' Motion for a Temporary Restraining Order, that the City of Renton' s administrative position was , and always had been , that motion picture theaters were a permited use in the business land use zones within the City. See Supp . Excerpt of Record , tab B-1 , R .T . of testimony of David Clemens on January 29 , 1982, page 60, line 4 ; and Supp . Excerpt of Record , tab B-2 , R . T . of testimony of David Clemens on June 23 , 1982, page 72, line 6 ; and testimony of David Clemens at deposition taken on March 3-4 , 1982 , Vol . I , page 73, line 8 - page 75, line 10 (Excerpt of Record, tab "C" , Exhibit 2 , pages 26-28 ) . This position was based upon the language of the zoning code which authorized the existence of land uses "similar" to the uses expressly listed as permitted uses . (Excerpt of Record , tab "C" , Exhibit 3) In fact , the very buildings which the Plaintiffs purchased for operation as an "adult motion picture theater" had been operated by Plaintiffs ' predecessors in interest - 42 - for over thirty (30) years as legal conforming uses as general release motion picture theaters . In any event , any appeal from the administrative determination by the City of Renton of whether a use is an allowed use must be made to the hearing examiner of the City of Renton within fourteen ( 14) days following the admininstrative determination . The hearing examiner decision on the appeal is likewise subject to review by the King County, Washington , Superior Court by writ of review filed within twenty (20) days after the date of the decision by the hearing examiner . Renton Code of General Ordinances , Section 4-3011 (B) (5) . Appeals from the administrative determinations are not appealed to the City Council . Therefore , the Plaintiff is not subject to a standardless , discretionary administrative procedure of potentially unlimited duration . The ordinances are not facially vague and overbroad as a prior restraining system. XII . 1 THE JUDGMENT OF THE DISTRICT COURT WHICH DENIED PLAINTIFFS ' MOTION FOR A PERMANENT INJUNCTION SHOULD BE AFFIRMED , BUT FOR A DIFFERENT REASON . The judgment of the district court entered on February 18 , 1983, reads , in part , as follows : . . . it is ordered and adjudged that plaintiffs ' prayer for permanent injunction is DENIED, City of Renton' s motion to dismiss for lack of jurisdiction is DENIED and City of Renton's motion for summary judgment is GRANTED . " (CR 168 ) The City of Renton contends that the part of the judgment which denied the Plaintiffs ' Motion for a Permanent Injunction should be affirmed but for a different reason than that assigned - 43 - by the district court . See Massachusetts Mutual Life Ins . Co . v . Ludwig , 426 U.S. 479 , at 480 , 96 S .Ct . 2158 , 48 L .Ed . 2d 784 , at 786 ( 1976 ) . The district court made its finding that Renton' s ordinance was constitutional after a trial on the merits and on an "as applied" basis . As a part of granting the City of Renton' s Motion for Summary Judgment , it must necessarily follow that the district 'I court found the ordinance to be constitutional on fits face . Therefore the district court was required , under rudimentary principles of stare decisis and the overwhelming body of case law authority, to dismiss the federal lawsuit for failure to state a claim upon which federal relief can be based--at least insofar as Plaintiffs' claims for a civil rights cause of action is concerned . Young v. American Mini Theatres , 427 U.S . 50 , 97 S . Ct . 191 , 49 L . Ed . 2d 310 ( 1976 ) ; Martinez v. California , 444 U.S . 277 , 285, 100 S. Ct . 553 , 62 L . Ed . 2d 481 , 489 ( 1980) ; Allen v. McCurry , 449 U.S. 90 , 100-101 , 101 S.Ct . 441 , 66 L.Ed . 2d 308 , 317 ( 1980 ) ; Parratt v. Taylor , 451 U . S. 527 , 543-544 , 101 S.Ct . 1908 , 68 L .Ed . 2d 420 , 434 ( 1981 ) . • CONCLUSION The district court ' s decision must be affirmed . First , because the ordinance is constitutional . . Second, on other grounds than the basis of the district court ' s decision , because the district court should have abstained from exercising its jurisdiction when the City of Renton refused to consent to the determination of these "vital state interest" issues in the - 44 - Ij III federal court when state court proceedings were pending wherein the issues could be determined . ,I The district court ' s findings properly characterized the Ij ordinance as being in accord with the zoning regulation approved ' in Young v . American Mini Theaters , 427 U . S . 50 ( 1976 ) and Northend Cinemas , Inc . v. City of Seattle , 90 Wn. 2d 709 , 585 P.2d 1153 ( 1978) . The impact upon protected expression is minimal for no existing adult theater operations were affected , and there exists within the city 520 acres of land in all stages of development available for location of an adult motion picture theater . The ordinance does not preclude the operation of an adult motion picture theater within the City of Renton, nor, in view of the availability of development possibilities , does it effectively exclude development of such a theater. Therefore , the pitfalls of I i Schad v. Borough of Mt . Ephraim, 452 U.S . 61 ( 1981 ) , and Basiardanes v. City of Galveston , 682 F . 2d 1203 (5th Cir. 1982) , Ij have been avoided by the Renton ordinance . As in Young , the incidental or minimal impact upon protected expression imposed by the ordinance is justified under the four-part test set forth in United States v. O 'Brien , 591 U.S . 367 ( 1968 ) . In particular , the substantial governmental interest sought to be furthered by the regulation is completely unrelated to the suppression of free expression (it is not a disguised form of censorship) , and the governmental restriction is not greater I, than necessary to accomplish the governmental interest of - 45 - preservation of the quality of life of the residents of the family-oriented areas of the City of Renton. I, It cannot be said that the district court ' s findings of justification of the regulation in the legislative history of the ordinance are "clearly erroneous" . The findings of fact incorporated into the district court's opinion are supported by the record and mandate affirmance of the district court ' s decision. it Therefore , for the reasons set forth herein , this Court should affirm the judgment of the district court which granted the motion of the City of Renton for Summary Judgment of dismissal of the Amended and Supplemental Complaint filed by the Plaintiffs in the district court . DATED : February 15 , 1984 . Respectfully submitted , LAWRENCE J . RREN DANIEL 4 LLOGG, of Warren & Kellogg , . Attorneys for Appellee, City of Renton, et al . - 46 - • - t, • . . . • CERTIFICA7 : ! . • I, the undersigned,AAPreS fli4rk of the City of Renton, Washington, certify that this is a true and correct copy o M.APWer,o -V24.-Ar.-121.., . ! Subscribed and Sealed thisJI....day of_ 141.69.se.2— i : 1 1.'41/iCity1/-?P•1/7 77?14Ci . 1 CITY OF RENTON, WASHINGTON . I . ; . • . ) ' I t ORDINANCE NO. _ . AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, . RELATING TO LAND USE AND Z0.4ING ! THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO , . . , I ORDAIN AS FOLLOWS: r , . 1 SECTION I: Existing Section 4-702 of Title IV (Building • i • 1 . • Regulations) of Ordinance No. 1628 entitled "Code of General Ordinance: , I of the City of Renton" is hereby amended by adding the following i subsectons: : I 1 I. "Adult Motion Picture Theater": An enclosed building . •. !I . , . , • used for presentingmotion pictl: .i, films , video cassettes, cable ' . . 1 i. 1 television, or any other such visual media, distinguished or character; 1 by an emphasis on matter depicting. describing or relating to "specific, • i [ sexual activities" or "specified anatomical areas" as hereafter defineo. . i for observation by patrons therein. . 1 • ! . 1 • . 2. "Snecified Sexual Activities": 'H .._ (a) Human genitals in a state of sexual stimulation i• . , , .. I • or arousal; I . ! I , . (h) Acts of human masturbation, sexual intercourse . i . . • or 1 sodomy; \ . (c) Fondling or other erotic touching of human genitals . I . , T . pubic region, buttock or female breast. I 3. "Snecified Anatomical Preas" (a) Less than completely and opaquely covered human- genitals, pubic region, buttock, and female , . . : . . 1 breast below a point immediately above the top LI of the areola; and 1 • , I • (h) Human male genitals in a discernible turgid state, HI . ! even if completely and opaquely covered. 't " . -1- RECEIVE' '-:' 1 g tm? It 111 1 47 . I ! . I t 0 I I . , . i i .. 4 1 8 I SECTION II: There is hereby added a new Chapter to Title IV (Building Regulations) of Ordinance No. 1623 entitled "Code of General Ordinances of the City of Renton" relating to adult motion picture theaters as follows: • A. Adult motion picture theaters are prohibited within the area circumscribed by a circle which has a radius consisting , of the following distances from the following specified uses or zones: 1. Within or within one thousand (1000') feet of any i residential zone (SR-1. SR-2, R-1, S-1, R-2, R-3, : R-4 or T) or any single family or multiple family • E residential use. { ! i t • 2. One (1) mile of any public or private school 3. One thousand (1000') feet of any church or other religious facility or institution 4. One thousand (1000') feet of any public park or P-1 I zone. B. The distances provided in this section shall be measured s by following a straight line, without regard to intervening buildings, from the nearest point of the property parcel upon which the proposed 4 use is to be located, to the nearest point of the parcel of property • or the land use district boundary line from which the proposed land use is to he separated. • SECTION III.: This Ordinance shall be effective upon its i passage, approval and thirtydays after its 9 publication. PASSED BY TILE CITY COUNCIL this 13th day of April , 1981 • e ores A.�ead, dity dlerk APPROVED BY TILE MAYOR this 13th day of April . 1981. Approved as to form: Larhara Y. Stiineoc ayor Lawrence J.-If rren, Cicy Attorney Date of Publication: M:iy )! , I',r,1 48 • ' I I ., • 1 I I ...,:u .:4:I•a ll lyw� • • t '• COINIV r3 w,/l,„,;N w,.y r_/1_.rdy,tie•OS nee I.tee try el Menke 1 tote d alie,eee M•rS�i.,l lit""M..w.r 0,•e„ec/Y•due see sLet tee city or 1.4.4.is a ee w,ey•IrKI,W de teethe/e,ly N,l lM sere r!line seintsied4." le taw. • • I� III Witness PawedPaweWm . uh•I PMlee M. raven set ay hind end•lriN IM feet •e •l.f,_ rir X��.. CITY OF RENTON. WASHINGTON • ORDINANCE NO. 3L29 . . AN ORDINANiCE OF THE CITY OF RENTON, WAShINGTO; RELATING TO LAND USE AND Z0NING i • WHEREAS, on April 13, 1981, the City Council of the City _ , I of Renton adopted Ordinance 1o. 3526, which Ordinance was approved i by the Mayor on April 13. 1981, and became effective by its own I terms on June 14, 1981; and • • WHEREAS,it was the intention of the City Council of the City of Renton in the adoption of that Ordinance to rely. upon the opinion of the United States Supreme Court in the case of Young v. • American Mini Theaters, 427 US 50, and of the Supreme Court of the State of Washington in the case of Northend Cinemas v. Seattle, . - 90 Wn 2d, 709. to limit the location of adult motion picture theaters. as that term is defined therein, to promote the City of Renton's ., great interest in protecting and preserving the quality of its -,. is neighbor'�oods•, commercial districts, and the quality of urban life : 1 '' through .effective land use planning; and WHEREAS. the City Council, through its Planning and • Development Committee, held a public meeting on !larch 5. 1931, to receive testirlor.• from the public concerning the subject of regulating, of adult entertainment land uses , at which the following testimony was received which the City Council believes to be true, and which formed the basis for the adoption of Ordinance No. 3526: 1. Areas within close walking distance of single and multiple family dwellings should be free of adult • entertainment land uses. 2. Areas where children could be expected to walk, patronize or recreate should be free of auult entertainment land uses. 3. Adult entertainment land uses should be located in areas of the City '+hich•are not in close le Proximity to residd,gtial uses , churches , parks and other public facilities , and schools. 61 4. The image of the City of Renton as a pleasant and attractive place to reside will he adversely �`"� 49 .f J . . . • affected by the presence of adult entertainment land uses in close proximity to residential land • uses, churches, parks and other public facilities. • and schools. • • S. Regulation of adult entertainment land uses should • • be developed to prevent deterioration and/or degradation of the vitality of the community before . the problem exists, rather than in response to an . existing problem. - 6. Commercial areas of the City patronized by young • people and children should be free of adult enter- . tainment land uses. 7. The Renton School District opposes a location of . adult entertainment land uses within the perimeters • of its policy regarding bussing of students, so that students walking to school will not be subjected to 's confrontation'with the existence of adult entertain- • meet land uses. i;_ 8. The Renton School District finds that location of adult entertainment •land uses in areas of the City• which are in close proximity to schools, and • • commercial areas patronized by students and young • .•people, will have a detrimental effect upon the . quality of education which the School District is providing for its students. 9. The Renton School *District finds that education of its students will be negatively affected by location . of adult entertainment land uses in close proximity to location of schools. 10. Adult entertainment land uses should be regulated by zoning to separate it from other dissimilar uses ' just as any other land use should be separated from • uses with characteristics different from itself. • 11. Residents of the City of Renton, and persons who are non-residents but use the City of Renton for shopping and other commercial needs , will move from the community , . or shop elsewhere if adult entertainment land uses are allowed to locate in close proximity to residential uses, churches, parks and other public facilities , and schools. 12. Location of adult entertainment land uses in proximity to residential 'uses . churches , parks and other public facilities.• and schools . may lead to increased levels • of criminal activities , including prostitution, rape. incest and assaults in the vicinity of such. adult . entertainment land uses. 13. ;Merchants in the commercial area- of the City are • • concerned about adverse impacts upon the character _ and quality of the City in the event that adult entertainment land uses are located within close proximity to residential uses, churches ,parks and - other public facilities , and schools. Location of • -2- 50 J • adult entertainment land uses in close proximity • to residential uses. churches, parks and other public facilities, and schools. will reduce retail• trade to commercial uses in the vicinity, thus . - reducing property values and tax revenues to the . .I City. Such adverse affect on. property-values will cause the loss of some commercial establishments followed' by a blighting effect upon the commercial • • districts within the City. leading to further deterioration of the commercial quality of the City. 14. Experience in numerous other cities, including Seattle. Tacoma and Detroit. ?lichigan, has shown that location of adult entertainment land uses degrade the quality ' of the areas of the City in which they are located j_: and cause a blighting effect upon the city. The • I ;; skid row effect. which is evident in certain parts I' of Seattle and other cities. will have a significantly . • • • • larger affect upon the City of Renton than other t= major cities due• to the.relative sizes of the cities. :,. . 15. Noevidence has been presented to show that location ii . of adult entertainment -land uses within the City will ; • yi.. • • improve the commercial viability of the community. -' ' Y I 4' 16. Location of adult entertainment land uses within ` -` walking distance of churches and other religious facilities will have an adverse effect upon the • ministry of such churches and will discourage attendance at such churches by the proximity of adult entertainment land uses. 17. A reasonable—regulation of the location of adult entertainment land uses will provide for the protection ;I of the image of the community and its property values. • and protect 'the residents of the community from the .� adverse effects of such adult entertainment lanu uses. • while providing to those who desire to patronize adult entertainment land uses such an opportunity in areas • within the City which are appropriate for location of , adult entertainment land uses. . 19. The community will .be an undesirable place to live i • if it is known on the basis of its image as the location of adult entertainment land uses. 20. A stable atmosphere for the rearing of families • 1 cannot be achieved in close proximity to adult I entertainment land uses. 21. The initial location of adult entertainment land uses will lead to the location of additional and • similar uses within the same vicinity, thus multiplying the adverse impact of the initial location of adult entertainment land uses upon the residential, churches , parks and other public facilities , and schools. and • the impact upon the image and quality of the character of• the community. -3- . • 51 • . , A. . and WHEREAS, since the adoption of Ordinance No. 3526. it has come to the attention of the City Council of the City of Renton that it would be appropriate to set forth in writing the findings • f of fact which were the basis fur the adoption-by the City Council •• of Ordinance No. 3526: and . WHEREAS. the City Council finds that, in order to choose the least restrictive alternative available to accomplish the purposes ' for which Ordinance No. 3526 was adopted. and to include a severabiliI• clause which was inadvertently omitted from Ordinance No. 3526, and to make certain other technical amendments to Ordinance No. 3526. - • . . • that it is necessary for the City Council to adopt legislation . 0 . amending Ordinance No. 3526 to accomplish the foregoing.purposes; and • - • WHEREAS, the City Council. at its duly called special meeting on February 25. 1982. held a• public hearing upon the subject • • matter of land use regulations of adult motion pictures within the • City of Renton, at which public hearing the City Council received ' •comments from the public on that subject matter at which the followin;; testimony was received, which' the City Council believes_ to be true, . and which. together with the findings heretofore set forth as the basis for the adoption of Ordinance No. 3256, form the basis for the adoption of this Ordinance: .1. Many parents have chosen the City of Renton in which to raise their families because of the lack of pornographic entertainment outlets with its influence upon children external to the home. 2. Location of adult entertainment land uses on the • main commercial thoroughfares of the City gives an impression of legitimacy to, a'nd causes a loss . of sensitivity to the adverse affect of pornography upon children. established family relations, respect for marital relationships and for the sanctity of marriage relations of others, and the concept of non-aggressive consenual sexual relations. • -4- . 52 • 3. Citizens from other cities and King County will travel to Renton to view adult film fare. away from areas in • - : ' ' . which they are known and recognized. 4, Property values in the areas adjacent to the adult anbinupon theent d uses will commercial areaiof.theus CityuofnJ • a blightp Renton. 5. Location of adult entertainment land uses within • neighborhoods and commercial areas of the City of •. Renton is disrupting to youth programs such as Boy . Scouts, Cub Scouts and Campfire Girls. Many such youth programs use the commercial areas of the City as 'a historical research resource. Location of adult • entertainment land arkseandnother close publicproximity facilitiesiandLi•s p uses. churches. • schools is inappropriate. 6. Location of adult entertainment land uses in close . proximity to residential 'uses, churches, parks and • other public facilities, and schools, will cause a degradation of the community standard of morality. • Pornographic material has a degrading effect upon the relationship between spouses. • iNOW THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASH1: • • DO ORDAIN AS FOLLOWS: SECTION I: Existing Section 4-702 of Title IV (Building • Regulations) of Ordinance No. 1628 entitled "Code of General Ordinance of the City of Renton" is hereby amended by adding the following sub- sections: - •"l?sed" The word "used" in the definition of "Adult moti • . picture theater" herein, describes a continuing course of conduct of • exhibiting "specific sexual activities" and "specified anatomical are:' in a manner which appeals to a prurient interest. • ' SECTION__II: Existing Section 4-735 of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinance of the City of Renton is hereby amended by adding the following subsea i. (C) Violation of the use provisions of this section is decl:s to be a public nuisance per se. which shall be abated by City Attornr,': • by way of civil abatement procedures only, 'and not by criminal prosecui (D) nothing in this section is intended to authorize, legalize or permit the (stablishment . operation or maintenance of any . . I . business, building or use which violates any City of Renton ordinance or statute of the State of Washington regarding public nuisances , ' 1 sexual conduct, lewdness. or obscene or harmful matter or the ' exhibition or public display thereof. • ' -5- 53 • y . - •r I ' SECTIONN III: Existing subsection (A)(2) of Section 4-735 • _' of, Title IV (auildina.ReLulations) of Ordinance No. 1628 entitled . "Code of General Ordinances of the City of Renton" is hereby amended • Fl•' to read as follows: - • w. • • 2. One thousand feet (1.000') of any public or private • school. • SECTION IV: City of Renton Ordinance No. 3526 is hereby 1 amended by adding the following section• to read as follows: If anv section, subsection, sentence. clause. phrase or * i any portion'•of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent ,' s° jurisdiction. such decision shall not affect the validity of the • • ' • remaining portions of this ordinance: The City Council of the City of Renton hereby declares that it would have adopted City of Renton ;i Ordinance No. 3526 and each section, subsection. sentence, clause. ; phrase or portion. thereof irrespective of the fact that any one or 1I more sections. subsections. sentences, clauses. phrases or portions be declared invalid Or unconstitutional. e . SECTION V: If any section, subsection. sentence, clause. _ phrase or any portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of• competent • jurisdiction. such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Renton hereby declares that it would have adopted this ordinance 1 • and each section. subsection. sentence, clause. 'phrase or portion I thereof irrespective of the fact that any one or more sections , sub- 1 sections. sentences. clauses , phrases or portions be declared invalid - • or unconstitutional. . SECTION VI: The City Council of the City of Renton finds f and declares that an emergency exists because of the pendency of litigation against the City of Renton involving the subject matter of this ordinance, and potential liability of the City of Renton for damages as pleaded in that litigation, ana that the immediate adoption -6 ch. .',- .. ...) . . . . • • •• . . . • . • • • . . . •-- . . . . .... . . •'%7 • ... . . • • -. . . - • . * . . . • . . IF- - - - ' . • • • • of this ordinance is necessary for the Immediate preservation of • • . . .1. public peak, health, and safety or for the support of city government • • . • 1 •;;;. .. and its existing public institutions and the integrity of the zoning . . • • • -.. . . . .:7 of the City of Renton._ Therefore, this ordinance shall take effect . . . JE . - .. • immediately upon its passage and approval by the mayor . . 2* . PASSED BY THE CIYY COUNCIL this 3th day of May. 1982. • • 64461114-44Z1(14 • ' ' V 21: . e ores . . ea . Ity Fii -.g. • . F . • • . E APPROVED BY TUE HAYOR this 3th day of May. 1982. ,: • ..‘ • . . 1-:- . •. _ ;,--: • . . . WifEiii-T. ShInpoc57RT0E— • • . ,Il Approved as to frm:o - • • d •t :," • • . • .• .1 •t- . . • • • . ,= • • • - C/10...1.......,1 Piliego....o . . . . • • • • EaTor er— .TEF7. WiirreriC, fEvtatiiiiiiy •• • . . ..t Date of Publication: Hay 7. 1982 • • . . , its.... • -0-51: . 5.: P1' . • • i • , . . . . . • • . . . . -. - . • • • • . , . . . . • . . . • . . . . ; • . . . • . . • . . . • , . . • . . , , . . . . . . . . . • i . ' 1 1 • . 1 -7- . _ 5 5 • 11 CITY OF RENTON, WASHINGTON ; ORDINANCE NO. 3637 AN ORDINANCE OF THE CITY,OF RENTON, WASHINGTON ail AMENDING ORDINANCE NO. 3526 RELATING TO LAND USE AND ZONING AND AMENDING ORDINANCE NO. 3629 5Y DELETING THE EMERGENCY CLAUSE AND RE-ENACTING THE REMAINDER THEREOF WHEREAS, on April 13, 1981, the City Council of the, City of Renton adopted Ordinance No. 3526. which Ordinance was approved by the Mayor on April 13, 1981, and became effective by its own \ , 1 terms on June 14, 1981; and WHEREAS, on May 3, 1982. the City Council of the City of Renton adopted Ordinance No. 3629 amending Ordinance No. 3526. which Ordinance was approved by the Mayor on May 3, 1982, and' became effective on its passage and by the terms of the Ordinance; and WHEREAS the City Council wishes to remove the emergency clause from Ordinance No. 3629 and re-enact the remainder of Ordinance No. 3629 in its entirety; and WHERREAS, it was the intention of the City Council of the City of Renton in the adoption of Ordinance No. 3526 to rely upon 1 the opinion of the United States Supreme Court in the case of Younn 1 ' v. American Mini Theaters, 427 US 50, and of the Supreme Court of the State of Washington in the case of Horthend Cinemas v. Seattle, 90 Wn 2d, 709, to limit the-location of adult motion picture theaters as that term is defined 'therein, to promote the City of Renton's rotectin and preservingthe quality of its great interest in protecting neighborhoods , commercial districts, and the quality of urban life through effective land use planning; and WHEREAS, the City Council. through its Planning and . Development Committee, held a public meeting on March 5, 1981, to I,tl+e undersigned.LELoces A. Men o pelt of 1ta Cry of%Ace, Wasitinition. certify that tMi is a We and ax+oct copy of Q gA t ANt...E....dP..3( 7 �' • J Subscribed awl Sealed this aL41 day of I-102, 1;ta. City Clerk • 56 t + • i • • receive testimony from the public concerning the subject of regulation of adult entertainment land uses, at which the following testimony was received which the City Council believes to be true, and which formed the basis for the adoption of Ordinance No. 3526: 1. Areas within close walking distance of single and multiple family dwellings should be free of adult . entertainment land uses. 2. Areas where children could be expected to walk, patronize or recreate should be free of adult entertainment land uses. 3. Adult entertainment land uses should be located in areas of the City which are not in close proximity to residential uses, churches, parks and other public facilities, and schools. 11 4. The image of the City of Renton as a pleasant -. and attractive place to reside will be adversely affected by the presence of adult entertainment land uses in close proximity to residential land uses, churches, parks and other public facilities, • and schools. • 5. Regulation of adult entertainment land uses should be developed to prevent deterioration and/or degradation of the vitality of the community before the problem exists, rather than in response to an existing problem. 6. Commercial areas of the City patronized by young people and children should be free of adult enter- tainment land uses. 7. The Renton School District opposes a location of adult entertainment land uses within the perimeters • of its policy regarding busing of students, so that students walking to school will not be subjected to confrontation with the existence of adult entertain- ment land uses. 8. The Renton School District finds that location of adult entertainment land uses in areas of the City ' which are in close proximity to schools, and commercial areas patronized by students and young people; will have a detrimental effect upon the quality of education which the School District is providing for its students. 9. The Renton School District finds that education of its students will be negatively affected by location of adult entertainment land uses in close proximity to location of schools. • -2- 57 • • 10. Adult entertainment land uses should be regulations by zoning to separate it from other dissimilar uses just as any other land use should be separated from uses with characteristics different from itself. 11. Residents of the City of Renton, and persons who are non-residents but use the City of Renton for shopping and other commercial needs, will move from the community • or shop elsewhere if adult entertainment land uses are allowed to locate in close proximity to residential uses, churches, parks and other public facilities, . and schools. • 12. Location of adult entertainment land uses in proximity to residential uses, churches, parks and other public facilities, and schools, may lead to increased levels of• criminal activities, including prostitution, rape, incest and assaults in the vicinity of such adult • entertainment land uses. 13. Merchants in the commercial area of the City are concerned about adverse impacts upon the character and quality of the City in the event that adult entertainment land uses are located within close • proximity to residential uses, churches, parks and other public facilities, and schools. Location of adult entertainment land uses in close proximity to residential uses, churches, parks and other • public facilities, and schools, will reduce retail trade to commercial uses in the vicinity, thus reducing property values and tax revenues to the City. Such adverse affect on property values will cause the loss of some commercial establishments followed by a blighting effect upon the commercial districts within the City, leading •to further deterioration of the commercial quality of the City. • 14. Experience in numerous other cities, including Seattle. Tacoma and Detroit, Michigan, has shown that location of adult entertainment land uses degrade the quality of the area of the City in which they are located and cause a blighting effect upon the City. The skid row effect, which is evident in certain parts of Seattle and other cities, will have a significantly larger affect upon the City of Renton than other major cities due to the relative sizes of the cities. 15. No evidence has been presented to show that location of adult entertainment land uses within the City will improve the commercial viability of the community. 16. Location of adult entertainment land uses within walking distance of churches and other religious facilities will have an adverse effect upon the ministry of such churches and will discourage attendance at such churches by the proximity of • adult.entertainment land uses. -3- • • 58 17. A reasonable regulation of the location of adult entertainment land uses will provide for the protection of the image of the community and its property values. and protect the residents of the community from the adverse effects of such adult entertainment land uses. while providinn, to those who desire to patronize adult entertainment ..land uses such an opportunity in areas within the City which are appropriate for location of adult entertainment land uses. 18. The community will be an undesirable place to live if it is known on the basis of its image as the location of adult entertainment land uses. 19. A stable atmosphere for the rearing of families cannot be achieved in close proximity to adult entertainment land uses. 20. The initial location of adult entertainment land uses will lead to the location of additional and similar uses within the same vicinity, thus multiplying the adverse impact of the initial location of adult entertainment land uses upon the residential, churches, parks and other public facilities, and schools, and the impact upon the image and' quality of the character of the community. and • WHEREAS, since the adoption of Ordinance No. 3526, it has come to the attention of the City Council of the City of Renton that it would be appropriate to set forth in writing the findings of fact which were the basis for the adoption by the City Council of Ordinance No. 3526; and • WHEREAS, the City Council finds that, in order to choose the least restrictive alternative available to accomplish the purposes for which Ordinance No. 3526 was adopted, and in include a severability clause which was inadvertently omitted from Ordinance No. 3526, and to make certain other technical amendments to Ordinance No. 3526, that it is necessary for the City Council to adopt legislation amending Ordinance No. 3526 to accomplish the foregoing purposes ; and WHEREAS. the City Council, at its duly called special meeting on February 25, 1982, held a public hearing upon the subject matter of land use regulations of adult motion pictures within the City of Renton, at which public hearing the City Council received comments from the public on that subject matter at which the following testimony was received, which the City Council believes to be true, -4 11 - 59 -1 I • and which; together with the findings heretofore set forth as the basis for the adoption of Ordinance No. 3256. form the basis for the adoption of this Ordinance: 1. Many parents have chosen the City of Renton in • which to raise their families because of the lack of pornographic entertainment outlets with its influence upon children external to the home. • 2. Location of adult entertainment land uses on the main commercial thoroughfares of the City gives an impression of legitimacy to, and causes a loss of sensitivity to the adverse affect of pornography upon children, established family relations, respect for marital relationship and for the sanctity of marriage relations of others, and the concept of non-aggressive consensual sexual relations. 3. Citizens from other cities and King County will travel to Renton to view adult film fare away from areas in which they are known and recognized. 4. Property values in the areas adjacent to the adult entertainment land uses will decline, thus causing a blight upon the commercial area of the City of Renton. 5. Location of adult entertainment land uses within neighborhoods and commercial areas of the City of Renton is disrupting to youth programs such as Boy Scouts, .Cub Scouts . and Campfire Girls. Many such youth programs use the commercial areas of the City as a historical research resource. Location of adult entertainment land uses in close proximity to residential uses, churches, parks and other public facilities and schools is inappropriate. 6. Location of adult entertainment land uses in close proximity to residential uses, churches', parks and • other public facilities, and schools, will cause a degradation of the community standard of morality. Pornographic material has a degrading effect upon the • relationship between spouses. NOW THEREFORE. THE CITY COUNCIL OF THE CITY OF RENTON, • WASHINGTON DO ORDAIN AS FOLLOWS: it SECTION I: Existing Section 4-702 of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following • subsections: -5- • • 60 • • "Used" The word "used" in the definition of "Adult motion picture theater" herein, describes a continuing course of conduce of exhibiting"specific sexual activities" and "specified anatomical area in a manner which appeals to a prurient interest. SECTION II: Existing Section 4-735 of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following subsections : (C) Violation of the use provisions of this section is declared to be a public nuisance per se, which shall be abated by City Attorney by way of civil abatement procedures only, and not by criminal prosecution. (D) Nothing in this section is intended to authorize, legalize or permit the establishment, operation or maintenance of any business, building or use which violates any City of Renton ordinance or statute of the State of Washington regarding public nuisances, sexual conduct, lewdness , or obscene or harmful matter or the exhibition or public display thereof. SECTION III: Existing subsection (A) (2) of Section 4-735 of Title IV (Building Regulations) of Ordinance No. 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended to read as follows: 2. One thousand feet (1,000') of any public or private school. SECTION IV: City of Renton Ordinance No. 3526 is hereby amended by adding the following section to read as follows: If any section, subsection, sentence, clause, phrase or any portion of this ordinance is for any reason held to be invalid . or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City -6- of Renton hereby declares that it would have adopted City of Renton Ordinance No. 3526 and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional. SECTION V: If any section, subsection, sentence, clause, phrase or any portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Renton hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, sub- sections, sentences, clauses, phrases or portions be declared invalid or unconstitutional. SECTION VI: This ordinance shall be effective upon its passage, and approval and thirty (30) days after its publication. PASSED BY THE CITY COUNCIL this 14th day of June, 1982. •iA6..../ a � ? !7.W. Delores A. Mead, ICity Clerk APPROVED BY THE MAYOR this 14th day of June, 1982. SCR oc� Barbara 1. Shinpoch, Mayor Approved as to form: Lawrence J. 4arren, City Attorney Date of Publication: Jinn? is, 1982 • A G I1 , 1 2 • 3 FILED :N THE UNITED STATES DISTRICT C-0UR1 *STERN DISTRICT OF WASHinuTOI1 4 5 FEB 8 - 1983 6 BRUCE RIFKIN, Clerk .r..__ Deputy , 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 AT •SEATTLE 10 PLAYTIME THEATRES, INC . , a . ) Washington corporation, et al. , ) 11 ) NO. C82-59M Plaintiffs , ) 12 vs . ) ) STIPULATION AND ORDER 13 THE CITY OF RENTON, et al. , ) 14 Defendants . ) 15 16 WHEREAS, tr.is Court has heretofore entered its Preliminary 17 Injunction pendente lite against the enforcement of City of Renton 18 Ordinance No. 3637 after the taking of substantial evidence and 19 consideration of numerous exhibits; and 20 WHEREAS, the development of further testimony before the 21 Court would not materially add' to the evidence already before the 22 Court relative to plaintiff' s claims that Ordinance No. 3637 is 23 unconstitutional and the interests of judicial economy , both for 24 the Court and for the parties , would be served by a speedy and efficient resolution of the legal issues pendingbefore the Court; 25 g 26 NOW, THEREFORE the parties stipulate as follows : Burns & Meyer, P.S. STIPULATION AND ORDER 10940 N.E. 33rd Place •Suite 107 PA PP 1 Bellevue, WA 98004 • (2061 828-3636 1 . 1G � ; 1 STIPULATION 2 1 . Plaintiffs' claims for damages should be severed from . I 3 plaintiffs' prayer for a permanent injunction against the enforce- 4 ment of City of Renton Ordinance No. 3637. 5 2. With respect to the plaintiffs' claims that City of 111 6 Renton Ordinance No. 3637 is unconstitutional and their prayer for • 7 a permanent injunction against its enforcement, the matter should 8 be set for hearing by the Court at the earliest available date. At g such hearing, the matter shall be submitted to the Court based upon 10 the live testimony, affidavits, deposition testimony and exhibits 11 previously heard and considered by Magistrate Sweigert at the 12 hearings held relative to the plaintiffs' Motions for a Temporary 13 Restraining Order and Preliminary Injunction and defendant' s 14 Motions to Dismiss Plaintiffs' Complaint and for Summary Judgment. • 15 3 . At such hearing, each of the parties reserve the right 16 to argue their theory of the facts and law to the Court. 17 4 . Inasmuch as all issues have been fully briefed in matters 18 previously before the Court, no additional briefs will be 19 submitted, unless called for by the Court. However, each party 20 shall be permitted to draw to the attention of the Court, without 'll 21 argument, pertinent and significant authorities which come to the 22 attention of a party after the date of this stipulation stating the 23 reasons for the supplemental citations. Any response shall be made • 24 promptly and shall be similarly limited. 25 26 Burns &Meyer, P.S. STIPULATION AND ORDER 10940 N.E. 33rd Place• Suite 107 Page 2 Bellevue, WA 98004 • (206)828-3636 se-- 1 DATED this 31 day of January, 1983. 2 BURNS & MEYER, P.S. 3 4 BY &..! / 5 J- ck Burns ttor ey for Plaintiffs 6 7 8 � Larry Warre g Attorney fo efendants 10 11 ORDER 12 IT IS SO ORDERED/} ) ^ 13 DATED this — day of ' �'t��-C , 1983. 14 15 16 (;) CHIEF UNITED STATES DISTRICT JUDGE 17 18 19 20 • 21 22 ,23 24 25 26 Burns &Meyer, P.S. STIPULATION AND ORDER 10940 N.E. 33rd Place• Suite 107 Amman Bellevue, WA 98004 • 12061 828-3636 I UNITED STATES DISTRICT COURT WALTER T.MCGOVERN CHIEF JUDGE WESTERN DISTRICT OF WASHINGTON SEATTLE, WASHINGTON 98104 March 1 , 1983 Mr . Daniel Kellogg Assistant City Attorney — P .O. Box 626 Renton, WA 98057 Re : Playtime Theatres , Inc. v . City of Renton, Cause No. C82-59M Dear Mr .Kellogg : The Court has received your February 25 , 1983 letter requesting modification of the Court ' s Order entered February 18 , 1983 . ;I The Court declines to amend its Order for the reason that all motions were resolved by its January 11 , 1983 Order approving and adopting the Magistrate 's Report and Recommendation . The motions for summary judgment and for permanent injunctive relief were respectively granted and denied upon reconsideration of __. the record . That record is constituted of the evidence 4 previously heard and considered by the Magistrate . See Stipulation and Order entered February 8, 1983. The Court considers summary judgment appropriate on that , record. Nevertheless, the Court was free to resolve all issues in the matter of permanent injunctive relief including factual issues ; such resolution, although by summary judgment, does not comprise a technical infirmity , but is subject to review pursuant to Fed . R . Civ . P . 52( a ) . See Starsky v . Williams , 512 F . 2d 109 ( 9th Cir . 1977. Sincerely , .IG�:Gv/ WALTER T . McGOVERN - Chief United States District Judge Copy to : Burns & Meyer , P .S . 10940 N . E . 33rd P1 . , Suite 107 Bellevue , WA 98004 Clerk of the Court _ f� c" � v, OF R4,4 ;'' OFFICE OF THE CITY ATTORNEY. RENTON,WASHINGTON A. O % z �." POST OFFICE sOx 626 100 S 2nd STREET • RENTON.wASHINGTON 98057 255-e678 IMMID LAWRENCE I.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY O1344 e' DAVID M. DEAN, ASSISTANT CITY ATTORNEY February25, 1983 MO MARK E. BARBER, ASSISTANT CITY ATTORNEY TF0 SEP'�EP ZANETTA L.FONTES, ASSISTANT CITY ATTORNEY • • Honorable Walter T. McGovern Chief United States District Judge Room 710 United States Court House Seattle, Washington 98104 Re: Playtime Theatres, Inc. v. City of Renton Cause No. C82-59M Dear Judge McGovern: On behalf of the defendants in the above-mentioned action we want to bring to the attention of the Court a clerical error in the Order dated February 17, 1983 and entered on February 18, 1983, and the Judgment entered by the Clerk on February 18, 1983, and to request correction thereof pursuant to F.R. C.P. 60 (a) . You will recall that the Stipulation and Order executed by the parties on January 31, 1983 and ordered by the Court on February 8, 1983 provided that the Plaintiffs' claim of unconstitutionality of the ordinances and their prayer for a permanent injunction against the enforcement of the ordinances should be submitted for hearing by the, Court based upon the entire record previously heard and considered by the Magistrate. In that respect, it is our contention • that the hearing before the Court of February 10, 1983 was final argument after the close of all evidence on all issues except for the express reservation of the issue of Plaintiffs' t _ claim for damages . If that is true, then the reference to the916 granting of Summary Judgment in favor of the City is a clerical error and should be deleted from the Order and Judgment. You will also recall that the Defendants ' renewed motion to dismiss for failure to state a claim upon which relief can be granted (F.R. C.P . 12(b) (6) ) was denied by the Court in the Court' s previous approval of the Report and Recommendation of the Magistrate. We would request that the Court dispose of that renewed motion as a part of the final order of this case . Therefore, it would be our suggestion that the last paragraph of the Court' s Order and the Judgment be amended to. read as follows : "For the foregoing reasons, the Court having . reconsidered its de novo review which led to the entry of the preliminary injunction, the order granting preliminary injunction must be vacated as improvidently granted. Plaintiffs' prayer for permanent injunction against enforcement of the ordinance is denied., and Plaintiffs' Amended and Supplemental Complaint for Declaratory Judgment and Preliminary and Permanent Injunction is dismissed with prejudice; Defendants ' motion to dismiss for lack of jurisdiction and Defendants' renewed motion to dismiss for II failure to state a claim upon which relief can be granted (F.R.C.P. 12(b) (6) ) are both denied. " Very truly yours, Daniel Kellogg DK:bjm cc: Mr. Jack R. Burns Mr. James J. Clancy (with copy of Judgment and Order) Original of Letter to Court File 1 School located at 314 South Fourth Street , Renton , King 2 County, Washington . ANSWER: 3 ADMIT 4 ' . 5 INTERROGATORY NO . 6: 6 If you deny that the Renton Theater above described is located 7 within 1 ,000 feet from Renton High School located at 400 South Second Street , Renton , King County , Washington , or within 8 1 ,000 feet from St . Anthony' s Parchial School located at 314 South Fourth Street , Renton , King County, Washington , then state the number of feet from the Renton Theater property , � 1 9 more particularly described above , to the nearest portion of a 10 lot which is a public or private school use . 11 ANSWER : 12 13 N/A r 1 • 1 14 15 . 16 REQUEST FOR ADMISSION NO. 10 : 17 Admit that since on or about January 20, 1983 and thereafter , that defendant Playtime Theatres , Inc . , has exhibited , or 18 caused to be exhibited , for observation by patrons and possessed for the purpose of such exhibition, the following t9 motion picture films which have been exhibited at the Renton Theater located in Renton , King County , Washington on the , i 20 below listed dates : 21 PROGRAM DATE EXHIBITED 22 Deep Throat 01 /20/83 through 02/10/83 Devil In Miss Jones �3 02/11/83 through 02/17/83 !, I Blue Jeans 24 Naughty Network11 25 American Desire 02/18/83 through 03/03/83 1I All American Girls 111 26 Foxholes 03/04/83 through 03/10/83 27 Randy, The Electric Lady 28 Scoundrels 03/11/83 through 03/ 17/83 i I! WARREN is KELLOGG,P.S. 1 REQ. FOR ADMISSION, INTERLOCKING ATTORNEYS AT LAW we SO.SECOND ST,P.O.BOX cx TIJTCTiR(ln Awn P . PRODUCTION „ -9- IENTON.WASHINGTONlSO57 I , 1 Foxtrot 2 03/18/83 through 03/24/83 Irresistible g 3 Scheherezade, 1001 Erotic Nights 4 h 03/31/83 03/25/83 through g 5 Pandora's Mirror 6 Debbie Does Dallas 04/01/83 through 04/07/83 Debbie Does Dallas II 7 Little Girls Lost 04/08/83 through 04/14/83 8 Ring of Desire 9 The Dancers 04/15/83 through 04/21/83 Between the Sheets 10 04/22/83 through 04/28/83 Daddy' s Little Girl g 11 The Little French Maid 12 Every Which Way She Can 04/29/83 through 05/05/83 Night Life 13 05/06/83 through 05/12/83 .1 Expose Me Now g ' 14 Stormy 15 Young Doctors In Lust 05/13/83 through 05/19/83 Intimate Explosions 16 Up and Coming 05/20/83 through 05/26/83 17 Scheherezade , 1001 Erotic Nights 18 Up and Comming 05/27/83 through 06/02/83 19 Insatiable 20 Puss and Boots 06/03/83 through 06/09/83 Seduction of Cindy 21 Peepholes 06/10/83 through 06/16/83 22 Body Talk �3 Little Girls Blue II :06/17/83 through 06/23/83 The Best of Alex De Renzy 24 Tinsel Town 06/24/83 through 06/30/83 25 Princess Seka 26 Skin Deep , 07/01/83 through 07/07/83 Babe 27 Doing It 07/08/83 through 07/14/83 28 Baby Cakes WARREN&KELLOGG,P.S. REQ. FOR ADMISSION, INTERLOCKING ATTORNEYS AT LAW �M so.SECOND sT.,P.O.pox uc TNTFppnr,_ AND RED. PRODUCTION 7n -10- RENTON_WASHINGTON960S7 1 2 Nasty Girls 07/15/83 through 07/21/83 Little Darlin' s 3 San Fernando Valley Girls 07/22/83 through 07/28/83 4 Brief Affair Hot Dreams Commencing 07/29/83 5 Society Affairs 6 ANSWER: 7 ADMIT 8 9 REQUEST FOR ADMISSION NO. 11 : I 1 10 10 Admit that the films described in Request for Admission No . 11 above, were shown at the Renton Theater, commonly described as 507 South Third Street , Renton, King County, Washington, which 12 theater is in an enclosed building used for presenting motion picture films for observation by patrons therein. 13 ANSWER: 14 Admit that the Renton Theatre is an enclosed building and that 15 the movies identified in #10 ewere exiibs iteddd within the at building. Specifically deny:'that the building 16 defined in the Ordinances . INTERROGATORY NO. 7 : 17 If you deny that the films described in Request for Admission 18 No. 10 above were shown at the Renton Theater in an enclosed building used for presenting motion picture.. films for 19 observation by patrons therein , then state each and every fact , contention , legal or factual , and each provision of 20 federal , state , county or city law upon which you rely to support your denial of Request for Admission No . 11 . 21 ANSWER: 22 23 • 24 N/A 25 26 INTERROGATORY NO . 8: 27 If you deny that the films described in Request for Admission 28 No . 10 were exhibited at the Renton Theater on the dates WARREN&KELLOGG,P.S. ATTORNEYS AT LAW I, REQ. FOR ADMISSION , INTERLOCKING TN soATTOSECOND ATTORNEYS xc2G INTERROG. AND REQ. PRODUCTION -11- RENITON.WASHINGTON 74057 1 listed in Request for Admission No . 10, then , for the period 2 from January 1 , 1983 until the date of the answer of these interrogatories , specify for each film shown at the Renton 3 Theater during that period of time , the : u a . Name of each film. 5 b. The name , address and business telephone number of the distributor of each film. 6 c. The print number or numbers or other 7 identifying data of each of the films . 8 d . The dates upon which each of the films played at the Renton Theater . 9 e . The hours of exhibition on each date on which 10 the film was exhibited . 11 f. The running time in minutes for each print of each film, specifying the print number or other 12 identifying data for each running time . 13 g. The present whereabouts of each film. 14 h. If the present whereabouts of any film is unknown to you , then specify the name and 15 address and telephone number of the party to whom you delivered the film when it was 16 released from your possession. 17 ANSWER: ' 18 N/A 19 20 21 22 REQUEST FOR ADMISSION NO. 12 : 23 With respect to the film Deep Throat which was shown at the Renton Theater, admit the following: 24 a. The film exhibited the following: 25 (i) Human genitals in the state of 26 sexual stimulation or arousal; 27 (ii) Acts of human masturbation, sexual intercourse or sodomy ; 28 WARREN&KELLOGG,PS. REQ . FOR ADMISSION , INTERLOCKING ATTORNEYS AT LAW INTERROG. AND REQ. PRODUCTION -12- IN SO.WON!,ST.P.O.SOX 624 RENTON.WASHINGTON 96057 i I i I 1 (iii) Fondling or other touchingbuttock human or 2 genitals , pubic region, female breasts; 3 (iv) Less than completely and opaquely 4 covered human genitals , pubic region , buttock and female breasts 5 below a point immediately above the top of the areola; 6 (v) Human male genitals in a discernibly turgid state, even if ? completely and opaquely covered . 8 b . The film ' s exhibition was advertised in the Seattle Post-Intelligencer at or about the time 9 of its exhibition. 10 c. The film was advertised on the marquee of the Renton Theater in Renton , King County , 11 Washington at or about the time of its 12 exhibition . i3 d. The film was distinguished or characterized by an emphasis on matter depicting, describing or 14 relatingto the specific sexual conduct and exhibition of the specific anatomical areas 15 more particularly described in subparagraph "a" above of this Request for Admission . 16 e . The film was shown as a part of a continuing 1 course of conduct of exhibition of films at a the e 7 Renton Theater distinguished or ch 18 by an emphasis on matter depicting, describing or relating to the specific sexual conduct an 19 exhibition of specific anatomical areas as more particularly described in subparagraph "a" of 20 this Request for Admission . 21 ANSWER: See Attached 22 I I 23 24 INTERROGATORY NO. 9: 25 With respect to the film Deep Throat, state: 26 ' a. The producer of the film. 27 b . The name , address and business telephone number of the distributor or other source from which 28 you received the film. WARREN&KELLOGG,P.S. ATTORNEYS AT LAW REQ. FOR ADMISSION , INTERLOCKING tNsoATTONIYSATo.wxc2t 7NT RROG . AND REQ . PRODUCTION __ -13- BENTON,WASHINGTONl•OS7 li ANSWER TO REQUEST NO . 12 'I a. admit b. admit that the film was advertised in the Seattle Post Intellegencer in a manner specifically designed to avoid appeal to a prurient interest. c. `admit that the film was advertied on the theatre marquee in a manner specifically designed to avoid appeal to a prurient interest. d. admit that the film was distinguished or- characterized by an emphasis on matter depicting, describing, or re- lating to specific sexual conduct and exhibition of specific anatomical areas but specifically deny that such characterization, emphasis or description was in a manner which appeals to a prurient interest . e: deny- During the period of thime from the theatres • apercing until the date the August 19 , 1983, approximately 160 different films had been exhibited. The films since January 20 , 1983 comprise only approximately 3570 of the films shown. UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON PLAYTIME THEATERS, INC. , a ) Washington corporation, and 1 KUKIO BAY PROPERTIES, INC. , 1 a Washington corporation ) Plaintiff, ) vs. ) No. C 82-59 M ) THE CITY OF RENTON, and THE ) HONORABLE BARBARA Y. SHINPOCH, ) as Mayor of the City of Renton 1 and EARL CLYMER, ROBERT HUGHES, ) NANCY MATHEWS, JOHN REED, RANDY ) ROCKHILL, RICHARD STREDICKE ) and TOM TRIMM, as members of ) the City Council of the City ) of Renton; Served on DELORES ) A. MEAD, City Clerk and ) F JIM BOURASA, as Acting Chief of ) Police of the City of Renton, 1 Defendants , ) 1 jointly and severally, in their ) representative capacities only ) DEPOSITION UPON ORAL EXAMINATION OF DAVID R. CLEMENS, Volume I { Taken at Renton City Hall , Renton Washington i DATE TAKEN: March 3, 1982 COURT REPORTER: PEGGY MITCHELL, RPR BURTON, WILKERSON $ PIIELPS, INC. REGISTERED PROFESSIONAL REPORTERS 1206 BANK OF CALIFORNIA CENTER SEATTLE, WASHINGTON 98164 (206) 623-7178 (C: (:) 1 1 1 APPEARANCES For the Plaintiffs : .JACK. R. BURNS Huhhard , Burns F, Meyer 10604. NE 3Rth Place j Kirkland , Washington 98033 I, For the Defendants : DANTEL KELLOGG NARY E. B.RBER Warren F, Kellogg, P. S. 100 South Second Street Renton , Washington OSOS7 Also present : Ron Nelson • I i ' I I � 1 j INDEX ATTORNEY EXAMINATION Mr. Burns Pg• EXHIBITS NO. DESCRIPTION MARKED 1 Map Pg• Sc I I • I 1 I • I .1 II I I ; I I I • • i i I I i 1 -C ' . . 4._ J 1 RENTON, WASHINGTON; WEDNESDAY, MARCH 3 , 1987 ; 2 1 : 00 p.m. 3 4 DAVID R. CLEMENS having been duly sworn , was examined 5 and testified as follows : 6 7 - EXAMINATION 8 BY MR. BURNS: 9 Q This is a deposition of David Clemens being taken 10 pursuant to notice and a subpoena ; as well , 11 Mr. Clemens as been designated by the City of Renton 1: ' 12 to testify with respect to certain matters relating , 1-1' 13 to the zoning laws of the City of Renton and the 14 building requirements relative to the construction of 15 theaters within the corporate limits of the City of 16 Renton, and pursuant to the Rules of Federal 17 Procedure . 18 Mr. Cl emens , would you state your name and 19 address for the record, please? j I 20 A David R. Clemens . 200 Mill Avenue South, Renton , 1 21 Washington. 98055 • 1 22 Q And are you married , Mr. Clemens? ?.3 A Yes , I am. 24 Q Do you have any children? i T 25 A No. i I ----- - 3 1 1 Q And how old are you? 2 A 36 . 3 Q What 's your .educational background , sir? 4 A I have a Bachelor of Science degree in industrial • 5 design from San Jose State University. Post 6 graduate certificate in city and regional planning 7 . from the University of California at Berkley. 8 Q That 's a post graduate certificate? 9 A Certificate . 10 Q What kind of course of study is required to get that 11 post graduate certificate? 12 A There are four core courses administered by the twoelective at any 13 university, followed by 14 other accredited university, followed by the receipt 15 of a certificate. 1( Q Is that snnet' ing like a Masters Degree or is it 17 something else? • 18 A It would fall somew',cre hctween a Bachelors and a 1.9 Masters Degree . It is not a full Masters Degree . 20 Q Do you have any other educational or have You 21 attended any other educational institute doing post 22 graduate work? 23 A No. 24 Q And when did you connlete this host graduate 25 certificate progran at the University of California ? I 1 . 4 1 A I believe it was in August of 1974 . 2 Q Thereafter , did you seek employment in the job j 3 market ? 1 I 4 A I was previously employed in the job market since I 5 1971 . 6 Q Where was that? j 7 A City of Milpitas , M- I-L-P- I-T-A-S, California. I 8 Q And when did you leave the City of Milpitas ? 9 A In August of 1978 . 10 Q ' And during the time that you were employed by that 11 city, what positions did you hold? 12 A Virtually all positions within the City 's Planning 13 Department ending with four years as principal 1 • 14 planner for the City of Milpitas , that would he the 15 person in charge of the planning section of the 16 Community Development Department of the city. i 17 Q And after August of '78, where did you go? i 18 A - City of Renton . 1j 1 19 Q Have you Seen employed by the City of Renton since i ! 1 20 that time continuously? 21 A That ' s correct . I 1 22 Q And what positions have you held at the City of 23 •� Renton? I 24 A Assistant planner , associate planner , senior planner , I ` 25 acting planning director and policy development ` I I ; 5 1 1 director . 2 Q Now, during what period of time did you hold the job 3 as assistant planner? 4 A I believe from September of '78 through the spring of 5 1979. Would have been April or May approximately. 6 Q In general terms , what were your duties as an 7 assistant planner? 8 A As assistant planner , I was responsible for zoning 9 enforcement and interpretation for the City of Renton. 10 Q In connection with that , would you review every 11 building permit or application to determine whether 12 it complied with the zoning laws and things of that 0: . ] 3 nature? 14 A That ' s correct . 15 Q As an associate planner , what were your - - strike 16 that . 17 How long were you associate planner? 18 A I believe it was a period of about two months , In I transition between assistant planner and senior planner . 21 Q How did your duties vary as associate planner? 1 ?? A No change. 1 23 Q Distinction without a difference? 14 A Simply different title for doing the same work . (IC 25 j Q As a senior - - when did you become a senior planner? � I L i I i I I , � 6 1( • A I believe it was roughly mid year of 1979. June or 2 July. 3 Q What were your duties as a senior planner? 4 A As senior planner, I was responsible for 5 comprehensive planning for the City of Renton, Cr development of the comprehensive plan, working. with 7 the planning commission in development of plans and 8 implementing policies . 9 Q When did you become the acting planning director? 10 A January of 1980. I am sorry. January of 1981 . t1 Missed a year . 12 Q So for approximately a year and a half, you were a ! ! • 13 senior planner and then you became the acting ! ! 11 planning director . . 15 A That 's correct . 16 Q I take it the planning director had left . 17 A Yes . 18 Q And who was the planning director lust prior to \Tour 19 becoming acting planning director? 1 20 A Gordon Y. Erickson , S-O-N. 21 Q And was he generally Your supervisor while you were '2 associate planner , senior planner? 1 23 A That 's correct . ?�' Q And when did you become policy development director? - 25 A December 1st of 1981 . I I I ' Or': 7 • 1 Q Was there a policy development director prior to 1 2 December 1 of 1981 ? 111 3 A No. 4 Q So it is a newly created position? LI 5 A That 's correct . � I 6 Q Is it -- there now a planning director or is it a 1 7 combined function? • 8 A There isno planning director . The typical zoning , i, . 9 enforcement administrations functions are now in the , I 10 combined building and zoning department . The policy 11 development department is almost exclusively involved I 12 now in long-range planning and policy development . ,(( H 13 Q So as planning director , did you deal with building ! , I 14 and zoning enforcement? t i • 15 A Yes . I 16 Q And now as policy development director , your duties 1I 17 have changed somewhat ? 18 A To emphasize comprehensive planning rather than 19 individual permit review and administration. 1 20 Q Is there someone who is in charge of zoning at this 21 particular time, zoning enforcement and review? 1 22 A The department head would he Mr . Ron Nelson , building 1 23 director . 1 24 Q That is the gentleman seated down here at the en.a of 25 the table? 1 8 1 A That 's correct . 2 Q Are you generally his supervisor? , 3 A No. We are mutual exclusive department heads . 4 Q In the chain of command, you go down one branch and 5 he goes down a different branch somewhere and you 6 both have a supervisor that 's above you somewhere 7 along the line. 8 A That would he the Mayor. 9 Q So you are responsible -- are you directly 10 responsible to the Mayor? 11 A Yes . � I 12 Q And the Mayor is your immediate supervisor? �-� 13 A That 's correct . 14 Q And would the same he true of Mr. Nelson? 15 A Yes . 16 Q Now, you were asked to bring with you certain 1.7 documents or -- strike that . 18 You were served with a subpoena duces 19 tecum? 2e0 A Yes . 21 Q You were asked to bring with you certain documents 22 and you have brought those documents with you or are 23 they in the packet of materials that were supplied to 24 me? . I ' i ( 25 A tn. the packet of materials supplied. - I 1 Q So any summary of findings or conclusions relative to 2 the zoning regulation of adult theaters in the City 3 of Seattle? 4 A Those are contained in those documents . 5 Q And all material regarding the regulation of adult 6 businesses reviewed or considered by you or your 7 staff prior to the adoption of this Ordinance are in 8 these materials? 9 A I believe those are one and the same. 10 Q And all other materials used by you in reviewing 11 locational problems associated with adult businesses 12 and used by you in advising the City Council planning e( 13 staff or planning development committee of the City 14 of Renton prior to or during the adoption of this 15 Ordinance are in these materials? 16 A That 's correct , I believe they are the same. 17 Q And you have available to you somewhere here today 18 all detailed maps , drawings or photographs prepared 19 by you which show those portions of the City which 20 are not subject to the locational restrictions of the 21 Ordinance? 22 A Okay. The map that was- prepared during the time of 23 the Ordinance adoption was destroyed shortly after 24 the - - shortly after or at the same time as the { 25 adoption took place, so the original maps are not I , 4( ' I 1 available. 2 Q Do you have any maps available today that you are 3 currently using? 4 A The map within the affidavit is available that was in 5 the previous testimony and we have prepared maps for 6 the City Attorneys office at their request . 7 Q Now, there is -- I had asked that you bring with you 8 a comprehensive report from the City Attorneys 9 identified in your affidavit relating to the proper 10 scope of land use, regulations and experience from 11 other cities and your attorneys have objected to that 12 document . Are you familiar with that document? A 1-1( 13 A I have read it . 14 Q And when did you first see that document? . 15 A I can't give you a precise date, but it would have 16 been a period of probably two to three months prior 17 to the adoption of the Ordinance. . I 18 Q Do you recall who the document was addressed to? 19 A No, sir, I don 't . 20 Q Who gave you the document? 21 A To the best of my recollection, it came through the 22 City's normal routing system in an envelope marked 23 "confidential ." I do not recall whether that. was 24 from the Mayor ' s office or from the attorneys 25 office. i 11 1 Q. And when you received that document, were you the 2 acting planning director , senior planner , associate 3 planner or assistant planner? 4 A I am not positive. I don't recall precisely. It 5 could have been while I was still a senior planner. I 6 don't recall precisely. 7 Q When you say it came through the normal routing 8 channels or routing system, what is that system? 9 A City has series of mailboxes in the printshop area 10 for each of the departments , and the section or 11 clerical staff make pickup and deliveries from that 12 facility. 13 Q And was this a document that was just left in a box 14 with your name on it? 15 A I don't recall precisely what the envelope looked 16 like. The only thing I recall for sure is that it I I 17 did say "confidential" on it and it was sealed. Did you -- I take it you opened that and examined it ? 1 18 Q 19 A Yes . 20 Q Did you show the document to anyone? 1 , 21 A I assume that it was reviewed by both myself and 22 staff people working for me. 23 Q And who were those staff people? 24 A At that time it probably would have been Gene 25 Williams , or Roger Bloylock. B-L-0-Y-L-O-C-K. 17 0(1_, 1 Q Did you discuss the contents of the letter or the 2 report with anyone? 3 A Probably with those two staff people. And if -- if I 4 was still senior planner at that time, also with 5 Mr. Erickson. As I say, I don't recall at the moment 6 that I received it whether it -- I was senior planner �. 7 or acting director at that time. 8 Q Was that or -- strike that . 9 You were in attendance at all City Council 10 meetings , planning committee meetings and planning 11 commission meetings involving the adoption of 12 Ordinance No. 3526, were you not? 13 A City Council committees and council meetings . I was 14 not involved in the prior discussion that was held 15 with the planning commission. Mr. Erickson was 16 directly responsible for that . 17 Q Did - - was this report that we are referring to from 18 the attorneys , was that ever discussed or referred to 19 at any of the meetings that you attended? 20 A It was discussed at the planning and development 21 committee. I do not recall whether it was discussed j i 22 on the floor of the City Council . 23 Q And was that planning development committee meeting a 24 public meeting? 25 A Yes , it was . 13 1 Q And could you recall for me the best you can the 2 context of the discussion about that document and 3 what was said and by whom? 4 A To the best of my recollection, the assistant city 5 attorney, Mr. Kellogg, was discussing the 6 • i"- difficulties inOt4Teiriig,ana_uttimal_plLy enforcing 7 1,.etulati-ons—on—adult—entertal-nmtnt,dand,-us_es . 8 Q Was he, in effect , reading from his report? 9 MR. BARBER: Object to the form of the 10 question. Go ahead. 11 A He may have read excerpts from it . He did not read 12 the -- its entirety. I would say that he probably 13 summarized the key points . 14 BY MR. BURNS: 15 Q Do you recall any other occasion that that document 16 was discussed in a public meeting? 17 A No. 18 MR. BURNS: Counsel , based on this 19 testimony, it appears whatever confidentiality may 20 have been attached to that document was waived by 21 excerpts of it being read and it 's contents being 22 discussed at a public meeting, and so I would request 23 that it be produced. 24 MR. BARBER: Well , we disagree that there 25 were necessarily excerpts of that report read at the 1 I I i , 1 1 � 14 I 1 1 public hearing. And we will assert the privilege. I 2 Feel it is clearly covered by attorney-client 1 3 privilege that it was transmitted among the City, as 4 testimony has indicated, to various city employees in 5 a confidential -- an envelope marked "confidential" i 6 and we think it is clear it is covered by the 7 attorney-client privilege. We will not produce it • 8 voluntarily. 1 9 MR. BURNS: I didn 't expect you would. 1 I 10 BY MR. BURNS: 11 Q Mr. Clemens , at that planning and development 12 committee meeting, are any transcripts kept of those J 13 meetings? 14 A No. 15 Q Any public record kept of those meetings? 16 A To the best of my recollection, there may have been 17 notes prepared by myself, by the Council members that 18 were present , possibly by the attorneys office , hut 19 no formal record in the form of minutes or similar 20 document has been prepared or was prepared. 21 Q There are no tape recordings or videotapes or any of- - i 22 A No, no, sir . 23 Q As far as that . 24 Mr . Clemens , in your capacity as senior 25 planner, acting planning director and now director of II I I I i • 15 1 policy development, are you aware of any documents 2 that exist within the official records of the Redmond 3 or any of its agencies which would relate to the 4 passage of Ordinance No. 3526 which have not been 5 produced today in the packets that counsel gave me I ' 6 when we began? 7 A Not to the best of my knowledge. 8 Q So to the best of your knowledge , there is nothing ' III 9 other than what is in these packets that would exist 10 that would relate to this Ordinance; is that what 11 you said? 12 A That 's correct . 13 Q And have you had an opportunity to search and review 14 all the records in coming to that conclusion? 15 A Yes . 16 Q Mr . Clemens , for the purposes of a preliminary 1.7 injunction hearing, you prepared an affidavit to 18 which was attached a map. Do you recall that 19 affidavit and the map? 20 A Yes , I do. . 21 Q . On that map, certain areas were identified by you as 22 being locations where Ordinance No . 3526 does not 23 apply. Are you familiar with the way you had labeled 24 that map? { 25 A That ' s correct . i i , . . , . , . J • . • l fi • • 1 Q For the purposes of our discussions today and 2 tomorrow, are there -- are these areas that were 3 marked on that map the only areas where Ordinance 4 No. 3526 does not apply? 5 A To the best of my knowledge, that 's correct . 6 Q So you have not , since this original affidavit , 7 discovered other areas that may be of concern to us . 8 A No. 9 Q Now, for the purposes of our discussion today, I have 10 put on the bulliten board here a map which is • 11 entitled "A Zoning Map of the City of Renton" with a Ar . 12 date -- effective date of June 19, 1981. Are you familiar with that map?13 p 14 A Yes, sir , I am. 15 Q And is that identical in major terms to the map which 16 was attached to your affidavit? • 17 • A Yes . 18 Q And is this the current zoning map in effect for the 1 1 19 City of Renton? 1 20 A There may have been revisions since that time, hut 21 none of substance that would affect this Ordinance, 22 to the best of my knowledge. 1 23 Q Now, are the zones indicated on this map the `current I 24 zones -- strike that . '4: 25 I have marked certain areas on this map in I 17 1 red. And let me label them as 1 , 2 , 3 , 4, and 5. 2 Without getting into the exact detail of the 3 locations, are those five areas the general areas 4 that are marked on your map? 5 A That 's correct . 6 Q Now, are those areas also currently zoned as 7 indicated on this map? 8 A Yes , to the best of my knowledge they are. 9 Q So for Area 1 , we are talking about an H-1 zone? 10 A That 's correct . 11 Q For Area 2 , we are talking about , I guess , a G zone? 12 A I believe there may be some light industrial in 13 there. We have done some. 14 Q Down in this area? 15 A Yes . 16 Q And in Area 3 , we are talking about probably a M-P 17 zone? 18 A Correct . 19 Q For Area 4 , we are talking about a R-1 down to a M-P 20 and maybe a G? 21 A Correct . 22 Q And for Area No. 5 , we are talking about M-P, H-1 , 23 L-1 and may be a little G; is that correct ? ; I 24 A That ' s correct . (4: 25 Q Now, for the purposes of our discussion today, could 1 i . 4[ ' 18 J 1 you come over here and mark on this bigger scale map, 2 to the best of your ability, the exact boundaries of 3 the areas identified on your map? 1 4 MR. BARBER: We will object to that . If 5 you want to ask Mr. Clemens questions and have him 6 answer referring to the map, that 's fine, but we will 7 not -- we will direct him not to step to the map and 8 to mark upon it . 9 MR. BURNS: Why? 10 MR. BARBER: Purpose of the deposition is 1 11 to examine him orally. 12 MR. BURNS: Well , Mr. -- he can -- 13 BY MR. BURNS: 14 Q Mr. Clemens , with regard to this area that I have i. 15 marked as No. 2, which is shown on your map, how far 16 to the north on this map does it extend? 17 A The area in question in Area No. 2 in all probability I1 18 does not exist due to the Section , I believe it is I , i 19 2 of the Ordinance. Let me check the precise 1 20 language. I am sorry, Section B. 21 Q Section B of what? 22 A It is Section 4-735 (B) , which is the codification of 1 i 23 -- in Ordinance 3526 . j 24 Q Is it your testimony today then that the area marked ((I 25 as No. 2 on this map is not an available location 1 ! • I 19 1 pursuant to Ordinance No. 3526? 2 A I believe that to he the case. 3 Q So in terms of the words used on your map, which was 4 attached to your affidavit, Ordinance No. 3526 would 5 apply in that area. 6 A That 's correct . 7 (Discussion off the record) 8 BY MR. BURNS: 9 Q And going a step further so that it is absolutely 10 crystal clear what your testimony is, if I wanted to 11 locate an adult theater in this area marked roughly 12 by Exhibit 2 or by No. 2 on this map, under the -- Ordinance No. 3526 , I could not 13 provisions of in 1 14 do so? i I 15 A I believe that would be the case. 16 Q Now-- 1 17 A Can I have just a second? 18 Q Sure. 19 (Discussion off the record) 1 I 20 BY MR. BURNS: 21 Q Is there anything you want to add to your answer? 22 A No. 23 Q Now, we indicated or` you previously testified that 24 some of Area 2 may he covered by the designation L-1. . 25 Were you referring to the area down within the �. I • J . 20 1( . I intersection of these railroad tracks? I 1 2 A Yes . 3 Q Is this whole area shown by No. 2 on this map and 1 4 what is an attempt to approximate the area shown on 5 your map, is that whole area unavailable for use as ' 6 an adult theater or is there some area that extends 7 down into the junction of the railroad tracks that 8 may be available? 9 A There may he. I. do not recall at the present time i 10 whether the mapping that we prepared for the I i I 11 Attorneys office includes a parcel within that area 12 or not . . (- ' 13 So there may he a parcel within the junction of these 1 Q 1 i 14 railroad tracks which is available. 15 A It is possible. ! 16 Q Now, let me label that on the map as No. 6 . And you 17 see where I put the No. 6? 18 A Yes . 19 Q And let me draw boundaries around it . Is that the I 20 area where you're now indicating that there may be a 1 , I 21 possible location but you're not sure? 22 A Either in that precise location or immediately I I I 23 adjacent to the south or west . 24 Q Immediately adjacent to the south or west . Could you . 25 come over here and point where you're referring to? Il 1 i 21 AV 1 A I believe if you simply extend the No. 6 that you 2 have there slightly east and west from that location, I I 3 that there may be a parcel in there that would apply. 4 Q Do you mean in this direction or towards this river? 5 A Yes. Westerly from the 6 towards the river . 6 Q And easterly over into this direction. 1 7 A In that general area there may he, but my 8 recollection is not crystal clear . 9 Q Now, the area that we have designated with a No . 3 , 10 is that area, as I marked it on this map, a correct 11 representation of the area shown on your map? 12 A It may be a little bit small , but it is essentially hical location . the correct geograp 13 I 14 Q And could you tell me if there are any streets that I, 15 hound that particular location so that we can I 16 identify it with particularity? i 17 A I believe the location is illustrated on the exhibit 18 contained in my affidavit adjoined Powell Avenue I 19 Southwest . 20 Q And is Powell Southwest on its easterly side or is 21 that on its southeasterly side? 22 A It would he on its easterly side. , 23 Q Can you tell me what the approximate area of that I ' 24 location is in gross square feet? (: 25 MR. BARBER: If you know. i , I I I • 22 _._I it 1 A I have never measured it precisely, but it would he i 2 several acres in size. 1 3 BY MR. BURNS: 4 Q The area shown on your map is several acres in size? • 5 A That is correct. I 1 6 Q Now, the area shown by No. 4 , I don't believe that 7 this map correctly depicts it . Does that area extend I 8 more down like this? 1 9 A That 's correct . 1 I 10 Q It includes all the way to the corporate limits of I 11 Tukwila that are shown on this map? I 12 A That 's correct . I___II 13 Q And otherwise is it approximate within reason the 1 14 area shown on your map? 1 I 15 A Yes , it does . 1 16 Q Does it extend any further to the north? 17 A I don't believe that it does . Without reviewing the I 1.8 we maps prepared for the attorneys office, I couldn 't I 19 say precisely, hut that appears to he generally the 20 area illustrated on this map. 1 21 Q Now, generally, this area you are aware is owned by 22 the Longacres Racetrack or whoever owns that 23 particular property; is that not correct? I11 ` I 24 A Yes , the majority of that is . (,1 1 25 Q Now, all of this , is there any of this area II 1 l I I I I 23 1 designated by No. 4 which is outside the Longacres 2 Racetrack complex that you know of? 3 A I am not aware of the condition of the area shown on 4 the map and designated with the zoning symbol G. 5 Q Down here at the bottom? 6 A The southerly piece. I am not aware whether that is 7 specifically a part of the Longacres complex or not . 8 Q Now, with particular or 'drawing your attention 9 particularly to the area on the east of Area No. 4 , 10 which appears to come out to the point on your map, 11 do you see where I am referring to? 12 A Yes . 13 Q And I will mark that with an A so that we know what 14 we are referring to. 15 Does any of that property extend or does 16 that point extend beyond the Longacres Racetrack 17 property, to your knowledge? 18 A I don 't recollect the dimensions illustrated in the 19 map we prepared for the Attorneys office. I believe 20 that it is generally coterminous with the easterly 21 line of the racetrack. property 22 Q And by that you mean it is all within the boundaries I ' 23 of the racetrack property? 24 A To the best of my recollection. 25 Q Now, who within the City of Renton ' s structure is I I I � 24 1. responsible for making the determination of these 2 exact boundaries? 3 A It would he our office in conjunction with the 4 building and zoning department to prepare an analysis 5 of whether a particular parcel was within or without 6 the regulations. 7 Q So it would be your responsibility and Mr. Nelson, 8 who is sitting at the end of the table. 9 A Yes . 10 Q And you have made a determination as to the exact it location of this easterly point in your capacity? 12 A For the purposes of review by the City Council . 13 Q purpose For the of review by the City Council . 14 A No. The City Attorneys office, I 'm sorry. 15 Q But that 's your responsibility to do that , is it not , 16 if somebody were asked to do that? 17 A Yes . 18 Q And you have done that . 19 A That is correct . 20 Q Could I see a copy of that? 21 MR. BARBER: I object on the ground it is 22 work product . 23 MR. BURNS: This is the gentleman who has 24 got to make the determination. I want to know where 4; 25 the boundaries are and you are telling me you aren ' t lt7 � 25 1 going to tell me where the boundaries are, you're 2 going to keep it a secret? ' 3 MR. BARBER: I am telling you he prepared li 4 a map for the City Attorneys office at his counsel 's 5 request and that that was in anticipation after this 6 litigation was started and it is work product . 7 BY MR. BURNS: 8 Q Well , will you prepare for me, will you as the 9 responsible city official for determining, 10 Mr. Clemens , the exact location of these boundaries 11 and as the person who is responsible for making that 12 determination, will you determine for me the exact !! 13 easterly boundary of this area shown on your map? 14 A If the Attorneys office advises that we can, we 15 would. 16 (Discussion off the record) 17 MR . BURNS: Will you ask him to do that or li 18 will you provide for me the exact location of this 19 easterly boundary here? ;, 20 MR. BARBER: We will snot provide the map 21 that we previously obtained on the ground it was 1 I! 22 privileged . If you wish to ask Mr . Clemens questions 23 to ascertain the extent of his knowledge as to the , 24 easterly boundary, you may do so during this 25 deposition. i i I 11 i! Ar 26 _J 1 MR. BURNS: Let me ask it once again, 1 1 2 Mr. Clemens . I 3 BY MR. BURNS: 4 Q Does any of this property shown by No. 4 and i 5 particularly the point identified by A extend beyond 1 6 the boundaries of the property owned by Longacres , a it I 7 definite yes or a no? 8 A I can't give you a definite yes or no. 9 Q But you have mapped that out for the City Attorneys . I' 10 A That 's correct . I 1 11 Q And they know one way or another whether it extends I I 1 12 beyond or not . 1 !Li; 13 MR. BARBER: I object to that question. 14 Don't answer . 15 BY MR. BURNS: I I 1 16 Q But you have mapped that out for the City Attorneys? 1 17 A Yes . 1 1 18 Q And why can' t you tell me or give me an answer to 19 that today? I' u 1 20 A The information that would be necessary to determine 21 it is in the material that we prepared for the 11 1 22 Attorneys office. I do not have in my head every 1 1 23 parcel that is zoned or contains a single family use • 24 or is within the other prescribed limits of the 25 Ordinance. ! 1 I (I 27 1 Q Then to the best of your recollection, to the best of 2 your knowledge, that property is all within the 3 limitations of the Longacres property, subject to 4 review of that material that you have prepared for 5 the City Attorneys? 6 A Yes . 7 Q Is that material available to you? 8 A Yes , I assume so. 9 Q And could you review it and have an answer for me 10 tomorrow when we continue this deposition as to 11 whether or not that property is within the limits of 12 Longacres or not? has already MR. BARBER: He given his 14 answer. We would object to that. 15 MR. BURNS: I want the record to reflect 16 that Counsel for the City shook his head and 17 indicated that he would not allow Mr. Clemens to 18 review that material over the evening recess and have 19 a complete answer for me tomorrow. 20 BY MR. BURNS: 21 Q Mr. Clemens , the area that I have identified with a ' 1I 22 No. 5, is this area roughly the same as the area 23 shown on your map attached to your affidavit? 24 A With the exception of I believe it is - - has slightly 25 more east and northerly tilt . It is generally as 1i 11 • 28 II 1 depicted. ih 2 Q When you say easterly, would you mean more in this ;I 3 direction? 4 A That 's correct . 5 Q And how far to the east would it go with my pencil , 6 over to approximately here? 7 A I cannot say precisely without reviewing the material 8 prepared for the Attorneys office. 9 Q And that 's all in the City Attorneys office? 10 A That 's correct . 11 Q Let me draw a line there just to approximate more to (I( 12 the east . When you say to the northeast, you mean U � 13 there is a general slope in that direction? 14 A That 's correct . 15 Q Let me draw that on the map. Now generally does that 16 area identified by the No. 5 generally depict the 17 area shown on your map? 18 A Yes , it does . 19 Q Now, do you know how far east from I guess it is 20 Interurban Avenue, this non- included area extends? 21 A I believe it extends slightly further east than that 22 depicted on the map, but, again, I cannot give you a j 23 precise boundary, but I believe it is a slightly 24 larger area than you have illustrated in that Area S . li 25 Q Would it extend out as far as the L-1 , area that 's � l 29 1 zoned L-1 as depicted by this map? 2 A I believe it extends into -- slightly into the M-P 3 designated area, which is east of the L-1 parcel 4 you have identified. 5 Q Would extend even further out into here; is that 6 correct? 7 A Yes . 8 MR. BURNS: And I take it , counsel , you are 9 not going to let him review his notes and materials 10 and make the exact boundaries of these included areas I' 11 available to me tomorrow when we continue this II 12 deposition? 13 MR. BARBER: We are not going to let you, 14 in essence, get into our file through information I 15 that we are claiming work-product information on. 16 MR. BURNS: I don 't want to look at the 17 file. I want to ask the City of Renton what areas 18 are covered by the Ordinance and what other areas 19 are not . 20 MR. BARBER: Ask him the questions and he 21 will respond. 22 MR. BURNS: He is telling me he can' t 23 respond, counsel . 24 MR. BARBER: You have got his testimony. 25 MR. BURNS: Okay. I � i ;I Ir . 30 I 1 1 BY MR. BURNS: 2 Q Mr. Clemens , I have redrawn the non-covered portion 3 to extend into the M-P area and marked it with a 4 letter B, does that approximate the non-covered area 5 that you are generally aware of? 6 A Yes , that would he approximately my best recollection � I 7 at this time. 8 Q So we are clear, we have talked about five areas , we I I 9 have specifically discussed Areas 2 , 3 , 4 , and S and 10 it is your testimony that Area 2 is generally not 11 available, so Areas 3 , 4, and 5 as we have discussed 12 are the areas of the City of Renton where Ordinance does1: not apply and in which an adult motion —J, 13 No. 3526 pp y 14 picture theater could be potentially located; is that s 15 your testimony? 16 A The testimony was that the areas that you have 17 depicted depict the areas on the map contained within 18 my affidavit. The areas that you have designated as , 19 I believe it is 4, that area, that 's correct , in all 20 probability is within the area restrictions of 21 Ordinance 3526 . 22 Q What do you mean, it is within the area of 23 restrictions? You mean you could not locate an adult 24 theater there? 25 A That 's correct . II I ' 31 1 Q So the area designated by the 4, you could not locate 2 an adult theater; is that right , is that what you are 3 telling me today? 4 A I believe that 's correct . S Q So we can eliminate the whole Longacre site; is that 6 a fair statement of your testimony? I ; 7 A Yes. 8 Q So let me ask about area No. 3 . Is that available to 9 locate an adult motion picture theater? 10 A It would be available if the plat currently before II 11 the City of Renton is recorded. In the present I I 12 unsubdivided nature of the parcel , I believe it would 13 not be available. 14 Q How about this potential area No. 6 that we 15 identified, would that he available or unavailable? 16 . A To the hest of my recollection, I believe that there 17 • is a parcel within that area , but I cannot tell you 18 precisely. 19 Q Now, Area No. 5 , this area to the south down here 20 that we have talked about, is that area generally 21 ' available? 22 A Substantial portions of that area are available. 23 There are parcels of property within that area which 24 would not he available. 25 Q Perhaps you could describe for me generally those 1 1 II I' 32 J 1 I 1 areas within No. 5 which are not available. And I 1 I 2 will try to mark them on the map as we go. I 1 3 A I don't recall -- I don't recollect precisely, but I ti 4 believe the parcels in question are the parcels at I 1 5 the perimeter in ,particular of the northeast . I 6 Q When you say northeast , you're talking about where, 1 7 generally here? 1 11 8 A Generally in those -- generally in the northern half 9 of the area that you just swept . 1 10 Q In the northern half of this area. 1 1 11 A Correct . 12 Q You mean the lines should he up a little closer or Oc13 are you saying the lines should go like this? 14 A The line -- the line of actual area would he more 'I 15 southerly and westerly from that line. 16 Q And by "that line" we are talking about this slanted 17 line? 18 A That 's correct . f 19 Q Would be more to the south, this direction, and more 20 to the west? 1 21 A That 's correct . 1 I 22 Q Now, I am going to, just for the purposes of trying 1 1 23 to map these out, if I did it like this , would that 24 he approximately? I don 't want a map - - Counsel , can 1 I 25 he come over to draw on the map just to ease this _1 33 I I �. whole thing rather than me guess where he is talking 2 about? 3 MR. BARBER: I object to that . 4 BY MR. BURNS: 5 Q Well , why don't you -- let 's go through it this way 6 then, Mr. Clemens. Is that the approximate line you 7 would draw? 8 A My recollection is that the line runs generally in a 9 north-south direction in the area in the vicinity of 10 the symbol M-P. Extends southerly and then extends 11 easterly approximately at the point of the line that I i 12 you had previously drawn and illustrated with a 13 crosshatching. 14 Q I didn't understand that . Could you point out to me 15 without drawing on my map which area you're talking I i 16 about? 17 A If you start at the M-P symbol . 18 Q Right here. 19 A And extend southerly to the crosshatched area, that 20 would be approximately the area that would he deleted. 21 Q Start from the center of the M-P or out by the P or 22 out by the M? 23 A I don't recall precisely. I would say probably 24 somewhere in the middle. 4: 25 Q Let me go from the middle down to here. Now you're `� II 34 -J I 1 saying that from that portion to the -- would this 2 square be the excluded part? 3 A No. I believe the exclusion is east of that line. 4 Q So this triangular piece in here; is that right? 5 A To the best of my recollection. 6 Q Now let me outline that in black and we will give it 7 a number, or letter. I have outlined it in black and 8 labeled it with a C in black. Is that generally the 9 area that you were talking about? 10 A Generally speaking. 11 Q Are there other areas within 5 which are not 12 available for location for an adult theater? :� 13 A I believe if you create another area extending 14 westerly from the M-P designation and extending 15 westerly to the separation, the line separating the 16 M-P and H-1 zoned area and exclude the area to the 17 north, that would he another area of exclusion. 18 Q Let me just go through it here. If I drew a line 19 like this , the area to the north would he excluded? 20 A I believe the line would be higher than that , but 21 that for illustrative purposes that 's probably close 22 enough. T3 Q If I started approximately here , would that he an 24 appropriate place to start? 1 25 A I can 't precisely tell you the exact location, hut i ' 35 irl j I i 1 generally in that vicinity. 2 Q And I drew it parallel or due west over the -- to the 3 line that separates the M-P from the H? 4 A Yes . 5 Q And then I go north and create another triangular 4 1 ! 6 piece of property? 7 A That 's correct . I' 8 Q And that 's as I have marked it in black and given the 9 symbol D, is that the area that you were generally , i' 10 describing? 1 11 A Yes . 1 12 Q And that area is also not available. ( I 13 A An area generally of that illustrative shape, yes . 14 Q Are there any other areas within the area generally i' , 15 marked 5 which is not available? I. 1 16 A The parcels that are fronting on Southwest 43rd which 17 is the southerly city limit line probably are not 18 available. I do not recall precisely which of those 19 would not apply. I believe that it extended from the ! 20 railroad tracks westerly -- I am sorry, easterly to 21 include the areas designated on the map as the 22 exclusion that we have already illustrated plus the f 23 area that extends up to the middle line between the f 24 two H-1 illustrations on the map. c ' 25 Q • Let me see if I have you right . You're saying that 1 it 1 i 1 1 • , 36 it : 1 the area up to this line, is that what you are ' 2 talking about? 3 A Between -- east of the railroad tracks which are 4 designated by the dash line. I 5 Q Approximately right here over to a point , 6 approximately right here and south to Southwest II i 7 ' 43rd? I, 8 A Yes , an area of approximately that area. ' i 9 Q Let me draw that on the map and we will give that a I 10 label . That 's an area that starts at this point I 11 right here, you see where I am? I' 12 A Yes . ____J 13 Q And it runs over to approximately this point? 14 A Yes . i 15 Q And then south down to 43rd to the intersection - - I 16 intersected with the point that we have already tl I 17 identified with a B; is that right? 18 A Yes. That 's to the best of my recollection. 19 Q And let 's call that Area E. Are there any other I 1i 20 areas within the area generally numbered 5 which are u I 21. not available? �I 22 A To the best of my recollection, that 's approximately II 23 the areas remaining. . 1i 24 Q Now, does the City of Renton own any property over (: 25 here in the M-P area that I am pointing to on the far I i i 1 1 1 J I , I 1(. . 37 I 1 westerly portion of this property? .2 A Other than city street right-of-way, I am unaware of . i 3 any property ownerships of the City. 4 4 Q If it 's determined the City owns any property over J 5 there, do you have any knowledge of whether or not 6 the City would make that property available for adult I I 7 theater use? 8 A If the City had property in that area? 1111 9 Q Yes . 11 10 MR. BARBER: If you know. i 1 11 MR. BURNS: That 's all I asked him. (( 12 A I don't know what the Council 's determination on that 13 would be. 1 14 BY MR. BURNS: 15 Q Would that be an area that you would get into in 16 terms of your policy development and so on? l i 17 A It is possible. We would normally he involved in 1 18 recommendations to the Mayor and Council on use of I �� 19 public property. 20 Q If it turned out you were asked for a recommendation, 1 21 what would your recommendation he? . 1 I 22 MR. BARBER: Objection; calls for I 23 speculation. 24 MR. BURNS: You can answer it . ( I 25 A I would think that as the most appropriate land use 1 I . 1 II 38 1 for the area that we would not he in favor of use 2 other than an industrial use in that zoning. 3 BY MR. BURNS: 4 Q Mr. Clemens , in your affidavit dated January 27, you 5 indicated that as illustrated on the attached map of 6 the City of Renton, there is approximately 400 acres 7 of Renton within which the City -- within the City of 8 land which does not fall within the locational 9 regulations. Do you recall that statement? 10 A Yes , I do. 11 Q Now, for our purposes , I believe the Court has , at 12 least preliminarily, concluded, and I want you to ii 13 make the assumption, this property identified in the 14 Boeing site is not available. You know the site I am 15 referring to? 16 A Yes . 17 Q I want you to -- further you have told me that the 18 area No. 2 is not available. 19 A Not in its entirety. 20 Q But we have relabeled it No. 6 . 21 A I 'm sorry. 22 Q The area that has a potential is No. 6 now, isn 't 23 that right? 24 A To the best of my recollection. 25 Q And we know that - - you have told me today that 1 I 1 39 li .r 1 generally the area identified with No. 4 is not 2 available; you have also told me the significant 3 areas of Area 5 are not available. Have you had an 4 opportunity to recalculate the available acreage of 5 the City of Renton which does not fall within the 1I1 6 locational regulations? i 7 A No. j 8 MR. BARBER: I object to the form of that 9 question. You may answer. p 1 10 A No, we have not recalculated. 1 11 BY MR. BURNS: [. 1 ' 1.2 Q Do you have an estimate based upon your best guess 1 guess ,your upon basee best 13 having prepared -- not 14 but based upon having prepared the original acreage 15 calculation and having included in your affidavit of 16 what percentage of that original 400 acres you are i. 17 not excluding? 18 A It would most certainly he more than half. T cannot 19 give you a more accurate number than that. ;I 20 Q So you are excluding more than half of the 400 acres 21 now. 1; 22 A That 's- - ,; 23 MR. BARBER: Objection; asked and answered. 24 BY MR. BURNS: CL25 Q So we are talking ahout an area that is something II 1 40 1_ 11 j1 less than 200 acres available to locate an adult I 2 theater . 3 A Yes . 4 Q Mr. Clemens , are you generally familiar with the 1 5 legislative history of the Ordinance No. 3526? 6 A Yes . 7 Q Did you participate in the legislative process 8 throughout its occurrence? 9 MR. BARBER: I object to the form of the I 10 question. You can answer, if you can. 11 A By participate, you mean was my office in the 12 discussions that occurred surrounding the Ordinance? L41 13 BY MR. BURNS: 14 Q Yes . 15 A Yes , we were. I 16 Q Were you present at the City Council meeting on June 17 23 , 1980 wherein the Renton City Council undertook 18 to study the subject of adult bookstores , films and 19 novelty shops by referring the matter to the planning 1 20 and development committee of the City Council? 21 A What date was that? i 22 Q June 23 , 1980. I 23 A. I do not believe that I was present at that Council 1 24 meeting. 1 25 Q You are aware , are you not , that this matter - - the I I L 41 1 Ordinance was referred to the chairman of the 2 planning commission for study, are you not? 3 A Yes, I am. 4 Q And that matter was referred back to the City Council 5 without study, was it not? 6 MR. BARBER: I object to the form of the 7 question. Lacks foundation. 8 A 4h. mmikstsiio did review the question, and my 9 recollection is that they gyres , q h�e`�'CJo'un?c 10 4t-apt;„t h Ih a ciffi of h erm oMr ep:Le;s;s inn g A a s `h-a - _.t-gA ,eld 11 r1e� so1ut ,on 12 BY MR. BURNS: 13 Q Is there any reco rd that we have here other than 14 those documents that you have given me that would 15 reflect the study that the planning commission gave 16 this Ordinance? 17 A I believe the documentation provided includes 18 planning commission minutes on the subject . 19 Q Now, the development and planning committee held 20 public hearings on this matter , did it not , on the 21 matter of Ordinance No. 3526? 22 A No, sir , I believe that they were public meetings . 23 Q Did I make a distinction? 24 A Yes . The distinction is that a public hearing would 25 require legal notice posting and a public meeting 42 1 does not . 2 Q Okay. So they had what you refer to as public 3 meetings . 4 A That 's correct . 5 Q And no notice is required to he given of those. 6 A That 's correct . 7 Q And were you in attendance at the public meetings 8 that were held by the planning and development 9 committee? 10 A Subsequent to the action of the planning commission. 11 Q Now, they had a committee meeting scheduled for March 12 5, 1981 , are you aware of that? 13 A Yes . 14 Q Did you attend that meeting? 15 A Yes , I did. 16 Q Is it true that the public did not respond to that 17 meeting and it was continued or rescheduled? 18 MR. BARBER: I object to the form of that 19 question. 20 A I believe March 5th was the meeting that we had 21 extensive testimony. 22 BY MR. BURNS: 23 Q Excuse me. Excuse me. On February 9. ' \ Was there 24 a meeting of the planning -- just a second here - i 25 let 's go hack a little hit . 43 1 1 Do you recall when the meetings of the 2 planning development committee were scheduled 3 relative to that Ordinance? 4 A No, sir , I don't have that at my fingertips. 5 Although there were several meetings . 6 Q Do you recall that on -- at the Council meeting on or 7 did you attend the Council meeting on February 9, 8 1981? 9 A I don't recall whether I did or not . 10 Q Do you recall that there was a planning development 11 committee meeting relative to this Ordinance that had 12 to be rescheduled because the public did not respond 13 to the notices? 14 A Yes . 15 Q And how many meetings were held by the planning and 16 development committee relative to this Ordinance? 17 A I can't say precisely. My recollection is 18 incomplete, but I would say in approximately six; 1 19 there may have been more. 20 Q And how many of those meetings were public meetings? 21 A Every one. 22 Q Now, on March Sth, 1981 , there was a public meeting, .I 1 23 was there not , relative to this 'ordinance? 24 A Yes , there was . A25 Q And there was public testimony at that meeting or it 44 1 public comment at that meeting? 2 A Yes, there was . 3 . Q And is that the only meeting where there was public 4 comment about this Ordinance? 5 A No. There were several other meetings of the 6 planning and development committee where members of ;I 7 the public did give testimony. 8 Q Is there any record by tape recording, videotape or 9 minutes of those meetings of the planning and 10 development committee which would describe or detail 11 the comments made by the public relative to Ordinance 12 No. 3526 or whatever it was called in its planning 13 stages? 14 A Not to the best of my knowledge , there were no tapes 15 or minutes . 16 Q Is there any record of the meeting of March 5 , 1981 ? 17 A With the exception of notes which I originally took 18 and I 'm sure other members of the Council took at 19 that time, there is no minutes or recordings that I 20 am aware of. 21 Q Now, your notes and those of the Council are included 22 within the documents that have been provide to me, is 23 that true? 24 A My notes were removed from my file after several r 25 months after the Ordinance was adopted, since there 1_1 45 (( 1 have been no action and my file was eliminated from 2 our working file. 3 Q So we don't have your notes . 4 A No. 5 Q Do we have any notes that are included in these 6 documents? 7 A -I don't know. Apparently Mr. Kellogg's notes were -- 8 are included in the package. j 9 Q Mr. Kellogg's notes , the City Attorneys notes? 10 A That 's correct. 11 Q Do you have any independent recollection of what was 12 said by various persons attending that meeting of 13 March 5? 14 A Yes , I recollect the general testimony that was made 15 and the testimony of several of the citizens is 16 reasonably clear. 17 Q Do you have personal knowledge or can you identify 18 the comments of any individual with the name of that 19 individual today? 20 A The two that come to mind are the superintendent of 21 schools , Mr. Colvice, and I am not sure how you 22 spell that , and Mr. K. Johnson, the director of •the 23 Greater Renton Chamber of Commerce. 24 Q Do you remember the names of any other individuals 25 that were testifying that you can identify with their !I i( 46 J 1 specific comments? to the best of 2 A Not my recollection. 3 Q Did you know. any of the other individuals that were ti 4 testifying other than the school superintendent and 5 Mr. Johnson? .' 6 A There may have 'been others that testified that .I had i ' 7 either seen or come in . contact with previously, but 8 none that' I can recall that I had any sort of a close . 9 knowledge of. 10 Q Is there any individual or any particular testimony 11 that you can recall today that you at that time were 12 aware that the individual had particular 4 ! , 1 13 qualifications that made his testimony more than just • 14 a personal opinion? 15 MR. BARBER: I object to the form of the • 16 question. 'I . 17 MR. BURNS: You understand my question? 18 THE WITNESS: I believe so. ;; , 19 A The two people that I have indicated previously ; ti 20 particularly stood out as individuals that did have ; ' 21 expertise in the area that they were discussing. 22 BY MR. BURNS: '1 1 23 Q Do you recall anybody other than these two ;i { 24 individuals? r 25 A Not to the best of my recollection. il l_i 1 47 1 Q Now, I recall that you testified about what these 2 individuals said at the temporary restraining order 3 hearing, but I don't happen to recall your testimony 4 with regard to what they said. To the hest of your 1 5 recollection, can you recount for me what Mr. -- the 6 superintendent of schools said at that hearing? 7 A He was concerned about the impact of adult 8 entertainment land uses on school education -- the 9 school education process and concerned about children 10 walking or being in the vicinity of those types of 11 land uses going and coming from school . 12 Q Did he express anything other than concern by way of 13 factual material which would support the conclusions 14 or concerns that he expressed? 15 A I don 't recall any specific items of background that 16 he provided other than his own opinion as an 17 educator. 18 Q So to the best of your recollection, you recall the 19 superintendent of schools offering an opinion, but 20 you do not at this time recall any facts that he may 21 have offered in support of that opinion. 22 MR. BARBER: Object to the form of the 23 question. 24 A I believe that ' s correct . N25 BY MR. BURNS: 48 1 Q Now, with respect to K. Johnson, the Renton Chamber 2 of Commerce person , what in particular do you recall 3 that he said? That is he rather than a she? 4 A It is a he. The comments that Mr. Johnson expressed 5 were essentially twofold. The first was that adult 6 entertainment land uses , I believe the term that he 7 used was could, adversely affect business practices , 8 property values within the City if allowed and he 9 expressed secondarily that the City zoning 10 regulations should he established to limit the 11 location of those kinds of land uses. 12 Q Do you know what sort of business Mr. Johnson is �--� 13 engaged in? 14 A Other than being the manager of the Chamber of 15 Commerce, I am not sure what his expertise or 16 technical background is . 17 Q Did he identify any specific ways in which adult 18 entertainment uses would adversely affect business 19 practices or was that just a general conclusion that 20 he stated? 21 A I believe that it was a general conclusion. 22 Q Do you recall any facts that he may have related at 23 that meeting that would establish that adult 24 entertainment uses could adversely affect business r{ 25 practices? 1_� • Ir49 1 A I don't recall at this time any specific facts that 2 he related. 3 Q Do you recall any specific facts that he may have 4 related which would substantiate his concern that 5 adult entertainment uses could adversely affect 6 property values? �I 7 A I don't recall any specific testimony. 8 Q Was there any specific testimony, to your 9 recollection, by anyone at that hearing that offered 10 facts in support of an opinion as to the effect of 11 adult land uses or adult entertainment uses on the 1: 12 City of Renton or as they would affect the City of 13 Renton? 14 A I don't recall at this time any such comments . 15 Q So you have no present recollection of any factual 16 . material offered at that public meeting; is that a 17 fair statement of your testimony? 18 MR. BARBER: Objection; asked and answered. 19 A No, I don 't recall any specific factual testimony. 20 BY MR. BURNS: 21 Q Is there anywhere where you know of where we could go 22 today to determine if, i.n fact, there was any factual ' 23 testimony offered, any document we could look at , 24 anything that we could do to determine what had taken i 25 place at that meeting? ' i 50. _ J • 1 A None that I am aware of. Could we break a second? i�,'; 2 MR. BURNS: Sure. 1 li 3- (Short recess taken) 1' i 4 BY MR. BURNS: il 5 Q Am I correct , Mr. Clemens , in stating that this Hi I 6 Ordinance No. 3526 was considered by the City Council I 7 on April 13 , 1981 ? 8 A If I could review the minutes , I could probably H 9 affirm that . • ICI' CI 10 Yes, based upon the minutes presented, it 11I' 11 appears the Ordinance was read for the second time IL 12 and adopted on that night . 13 Q Now, when it says read for a second time, does that 14 mean it was read for a first time sometime? 15 A There would havexbeen a prior time that the Ordinance i ' 16 was read the first time. 'i 17 Q Now, when it is passed, did you attend that meeting 18 when it was passed? 19 A I. don't believe I was at the meeting where the 20 adoption took place. 21. Q Have you made any effort to identify the owners of 22 the properties that are identified by No. - 3 and ! I 73 ' _ generally the area No. 5? HI LL 24 A We have made no specialized effort to evaluate H. (I 25 property ownerships . We are aware that the major ! ' J ! I it 51 1 property owners in -- who the major property owners I. i 2 are in those areas . 3 Q Who are the major property owners in the area No. 3? ' I I 4 A I believe there is a contract sale on that property 5 from First City Equities Company to Holvick, H-O-L-V- 6 I-C-K deReg, small d-e-R-E-G, and K-O-E-R-O-N-G, it ;I 7 is a Sunnyvale, California industrial park 1, 1 8 developer. The area generally designated as No. 5 , 9 the largest property owner in that area would he 10 Burlington Northern Railroad Company, although it 1 11 might be the title of Glacier Park Company, which is 12 their land people. ownersi; down in this area No. 13 Q Are there other major 5 , 14 in the Benaroya Business Park and the Cole Business 15 Center? 16 A Yes . I ' 17 n Are you aware of any other property owners down in 18 that area? 19 A I am certain there are others , particularly the 20 smaller parcels along the West Valley Road adjacent 21 to the westerly boundaries of the City. 22 Q Do you know generally who owns the area No. 6? 1 23 A I believe that is Burlington Northern, although it 24 may have been transferred to some other entity. 25 Q Now you indicated in prior testimony that something 52 1 is going on with area No. 3, that there is a plat in 2 process? 3 A Yes, that 's correct . 4 Q And until that plat is approved , area No. 3 is not 5 available; is that right? 6 A That 's correct . 7 Q And so if this litigation were resolved today and if 8 somebody applied for a permit to put an adult theater 9 in the area No. 3 today, they could not do so. 10 A That 's correct . 11 Q Through this area marked No. 5 , there is a drainage 12 ditch that runs through there, isn't there? 13 A That 's correct . 14 Q Are there any special requirements or limitations 15 about building around, near, over or across that 16 drainage ditch? 17 A The City has two regulations that would apply: 18 first , is the city storm drainage ordinance, I am not 19 sure that 's the precise title, which would apply to 20 any properties within the City of Renton hut 21 particularly areas adjacent to designated flood ways 22 and flood way fringes , certain regulations apply. 23 0 This is a flood plain ordinance you and I have spoken 24 about generally; is that right ? r1( 25 A Yes , that 's correct . !_-i I 53 I II 1 Q And that requires execution of a waiver against the '11 2 City prior to building. 3 A That 's a separate requirement . 4 Q Okay. 5 A The flood way ordinance is -- has been -- ordinance 6 in the regulations are spelled out in the City code. II' 7 The resolution that you were speaking to was a 8 separate action of the City Council relative to a 9 finding by the Federal Emergency Management 10 Administration that concluded that their earliest 11 flood hazard analysis in the City's areas designated m 12 as Green River Valley comprehensive plan area may 13 have been incorrect . 14 Q What under this storm drainage ordinance, what are 15 the general requirements then for building in this 16 entire area? 17 A The requirements under the ordinance are that the 18 finished floor elevation of any structure he above 19 the designated flood elevation. 20 Q Has the flood elevation been designated? 21 A The FEMA and federal agency analysis has been 22 completed and, as I noted, they found some 23 difficulties with the original analysis . As a part 24 (.f the Council 's resolution requiring a disclaimer to 25 he signed by properties developing within the valley 54 1 area, they also instructed the administration to 2 develop interrim regulations . The existing 3 interrim regulation would he one foot above the FEMA 4 flood elevations . 5 Q So I could build today or -- the FEMA flood 6 elevations are in existence; is that correct? 7 A That 's correct . 8 Q So if somebody wanted to build down there today, they 9 would have to build a finished floor level one foot 10 above the FEMA elevation; is that correct? 11 A That 's correct . That is correct . 12 Q They would also have to execute the waiver required 13 by Res olution 2421 ? 14 A That is correct . 15 Q Are there any other requirements or restrictions in 16 that area that apply particularly to setbacks from 17 that drainage ditch or building across it or doing 18 whatever within an area near the drainage ditch? 19 A The flood hazard ordinance requirements would not 20 allow any construction that would restrict the flood 21 way or to reduce the available flood storage that ' s 22 described in the flood fringe. 23 Q What does that mean , in layman's terms? 24 A In layman 's terms , if you put down one acre foot of 25 fill in order to get your floor elevation up to the fk 55 1 required minimum, you would have to remove one acre 2 foot of material from that area, if you were located 3 within the flood fringe. 4 Q I guess -- I don't understand you. You . say if I put 5 down one acre foot, I have to take away one acre 6 foot? 7 A That 's correct. 8 Q Where do I take it from? 9 A From the original site area. 10 Q How can I put and take away at the same time? 11 A Okay. What you would be required to do is excavate 12 from the remainder of the parcel of the property that 13 is not under the building the amount of fill which 14 you import to the site to get your floor elevation up 15 to the required level . Alternately, you could build 16 a structure on pilings so the flood area underneath 17 would not be restricted. 18 Q Okay. So. I think I understand now. So in order to 19 build, I have to create a mound, taking the dirt from 20 around the property site and putting it underneath my 21 floor or I can build on pilings and not do anything, 22 as long as my finished floor elevation is one foot 23 above this FEMA level . 24 A That ' s correct . 4: 25 Q Now, in particular, if I own a parcel of property 56 1 which -- down in this southern area, which includes 2 this drainage ditch, what can I do with regard to 3 that drainage ditch? Can I build over it , can I 4 build up to it? Those are two questions , but let 's 5 start with can I build over it? 6 A I believe that if the -- as long as' the flood way 7 itself, which is, at least currently, is defined as 8 being within the banks of the Springbrook Creek, as 9 long as that is not disturbed by the construction, it 10 may be possible to build over it. Now, I believe, 11 although I am not positive, that the right-of-way for 12 that creek is owned by Drainage District No. 1 of 1 13 King County.. In that case, I doubt that you would be 14 constructing over it , but presumably it could be 15 possible. 16 Q Now, I am showing you what is a marked-up copy of the 17 Renton Urban Area Comprehensive Plan. Are you 18 familiar with this map and drawing and things? 19 A Yes, I am. 20 Q Down here there is -- there is and I am pointing to a 21 green line which represents the drainage ditch which 22 runs through area No. 5 , am I not? 23 A Yes , you are. 24 Q Now with respect to this drainage ditch, you're 25 telling me that a right-of-way is owned by Drainage l� ' 57 1 District No. 1 ? 2 A I believe that 's the case. 3 Q Do you know how wide that right-of-way is? 4 A To the best of my recollection, I believe it is 40 5 feet . 6 Q 40 feet, so would be 20 feet on either side of the 7 midline of the ditch or 40 feet on both sides? 8 A 40 feet total . 9 Q So for practical purposes , there is a 40-foot swath 10 cut by this drainage ditch which is not available 11 for building, is that accurate? 12 MR. BARBER: Object to the form of the 13 question. I think it also misstates the testimony of 14 the witness . 15 BY MR. BURNS: 16 Q Did you understand my question? 17 A If the question is is it available, does it comply 18 with the Ordinance, the answer is yes . 19 Q That was not my question. As a practical matter , 20 there is a 40-foot swath through here that somebody 21 haF a right-of-way, the drainage ditch people, for 22 running their drainage ditch and that as a practical 23 matter is not available; is that correct ? 24 A I believe it would he technically feasible to 25 construct over it if you could get permission from I . E 58 J � 1 the drainage district to use the property. I I 2 Q But in your opinion, you probably aren't going to get 3 that opinion or that permission; that 's what you said . I 4 'efore, isn 't it? 5 A I don't recall that I made any remarks about the 6 drainage district 's -- desirability of doing. it 7 Q The comprehensive plan map that I am showing you 8 shows this tentatively, I think, as greenbelt , does 9 it not, on the comprehensive plan? 10 A That 's correct . 11 Q Is that currently in effect as greenbelt, this 40 -- 12 strike that . 13 Is the area designated as greenbelt, is 14 that the 40-foot swath or is it something greater 15 than the 40-foot swath? 16 A It would be generally the area contained within the 17 existing 40 feet . 18 Q Is that currently zoned or set aside for this 19 greenbelt by the regulations of the City of Renton? 20 A No. I believe the zoning as indicated on the map is 21 a variety of industrial zones , industrial and 22 business zones . 23 Q What is t'he effect of this comprehensive plan for the 24 purposes of future zoning? r.-(1 25 A The comprehensive plan would he taken into 59 1 consideration at the time of rezoning of property to 2 consider whether property should be left in its 3 natural state, particularly in this case along the 4 Springbrook Creek, and the case of the area No. 5, 5 all of the zoning currently exists and the 6 comprehensive plan would have little affect until we 7 got to the plan review stage. 8 Q Now, would you be the person who would he the -- 9 involved in making those kind of decisions as to 10 whether a prepared use in this area was consistent 11 with your comprehensive plan? 12 A Yes . 13 Q Now, let 's assume that this property is zoned where 14 this swath grows through, is zoned H-1 -- I think 15 part of it is within the H-i area or may he it is all 16 in the M-P area. If somebody came in with a use that 17 was an appropriate use for a M-P zone and wanted to 18 locate within this 40-foot swath, and assuming they 19 were able to get the permission of the drainage ditch 20 to do that , what would be the position of the City of 21 Renton? 22 MR. BARBER: Object to the form of the 23 a uestion. 24 MR. BURNS: Let me go hack again. 1 25 BY MR. BURNS: 60 1 Q Making those assumptions, would the City of Renton 2 have the power to veto or would the plans of the 3 developer be subject to an approval of the City of 4 Renton? 5 A Yes . 6 Q And would that come before you for consideration? 7 A In part . 8 Q And you are the head of the policy development 9 department which makes these comprehensive plan 10 decisions, is that not correct? 11 A That 's correct. Jr 12 Q If that happened, what would be the position of your IL 13 policy development department and what would he your 14 recommendation as policy development director? 15 MR. BARBER: Object on the ground calls for 16 speculation. 17 MR. BURNS: You can answer . 18 A I believe that our recommendation would he that the 19 area that is physically the existing Springbrook 20 Creek should be left in its natural state and the 2] development be located outside of that immediate area. 22 BY MR. BURNS: 23 Q And by outside of that immediate area , do you mean 24 outside the 40- foot right-of-way? AC 25 A. At a minimum. ' I 61 1 Q If I wanted to locate anywhere else in the, say, the 2 M-P area , let 's just take it for an example, and I 3 have a use that 's permited in the M-P zone, does your 4 department or any department of the City of Renton 5 have any discretionary right to review the use that I 11 I 6 want to put that property to? II 7 A Not the use. 1 8 Q What kind of discretionary review exists that the 9 City does have? 10 A Under the requirements of the M-P district, there is 11 a site plan review requirement before the land use 12 hearing examiner . That review would he a review of 13 the physical structure, its siting on the property, 14 requirements of marking and other minimum ordinance 15 standards . 16 Q But those are objective criteria, are they not , that 17 -- let me go back and ask. Are those objective 18 criteria set forth in the Ordinance? 19 A The building envelope is an objective criteria. 20 Q What do you mean by building envelope? 21 A That would be the area remaining on the property 22 after you subtract the setbacks and height 23 limitations . 24 Q So there are objective criteria that says I can put 25 this many square feet and I have to have this many • ` I 62 11-1, 1 parking stalls and I have to have this kind of 2 construction and those kind of wires and things like 3 that? 4 A That 's correct . 5 Q Is there any discretionary review that the criteria 6 may not be set forth in such objective standards? 7 A The criteria on the precise location of the building 8 within the building envelope that I have described is 9 more subject analysis . There may be other 10 circumstances that would warrant locating the 11 structure at a different point within the building 12 envelope than proposed by the property owner . 13 Q So I can come to you with a site plan for my parcel 14 of property and I can say I want my building here and 15 you can say no, if you are going to build it you have 16 to put it over here, as long as it is within the 17 setbacks and the other kinds of things? 18 A Yes , the City would have that authority. 19 Q Now, that includes the M-P zone. Would that also he 20 true for the H-1 zone? 21 A No. 22 Q So in the H-1 -- M-P zone, the City has discretionary 23 authority about building location on the site. 24 A That ' s correct . 25 Q And no other discretionary authority. II 1: 63 1 A Not to the best of my recollection. 2 Q Now in the H-1 zone, did I understand your testimony 3 to be that the City has no discretionary authority if 4 the use is an appropriate use for an H-1 zone? 5 A If it meets the Ordinance -- the specified Ordinance 6 standard for setback, parking, height and so on, 7 there is no discretion. 8 Q Now, area No. 3 would he within that M-P zone; is 9 that correct? 10 A That 's correct . 11 Q Area No. 6 , what zoning would that be, do you think, 12 or can you tell from this map what zoning that is? i t may Looks like he G. 14 A We 've done a rezone analysis and that L-1 zoning 15 classification that 's slightly to the southwest may 16 include that parcel . I don 't recall precisely, but 17 assuming that it was L-1 there would he no ability to 18 modify a plan that was in conformance with the 19 standards of the Ordinance. 20 Q How about in the G zone, assuming this may extend 21 down into the G zone. 22 A If that 's the G zoning classification, that would be 23 a large lot , single family zoning classification 24 and the standards again would he minimum standard 25 requirements . No discretion. . n JI 64 1 Q Would an adult theater use be permitted in a G zone? 2 A No. 3 Q So if in fact Area 6 is G, there would he -- adult 4 theater could not locate there? 5 A If it was in fact G at the time of the application, 6 it could not . 7 Q Looks like we may have an area over here that is 8 zoned B-P? 9 A Yes . 10 Q Is there any discretion allowed in a B-P zone? 11 4 The only use allowed in a B-P zone is parking, but , 12 again, there is no discretion. If the use was 13 parking, and it met the code requirements , it would 14 be allowed. 15 Q Now, with respect to this area that is identified 16 then as B-P, would -- could an adult theater locate 17 there? 18 A Within the B-P zone, no. 19 Q So there is an area -- this looks like a very slender 20 rectangular piece of property that is within the B-P 21 zone. Is that -- that is the B-P zone and looks like 27, it does not extend over to here or is that right or 23 is that how you would look at that? 24 A I believe that it is one contiguous parcel , that is 25 zoned a combination of B-P and H-1 . The portion that 1--1 65 1 is designated B-P could not be used for an adult 2 theater; however , the parking for an adult theater 3 could be located within the B-P zone and the theater 4 located on the portions zoned H-1 . 5 Q Is that -- okay. So you could use that for parking, 6 but couldn't put the physical building? 7 A That 's correct . 8 Q Within the Renton city codes , are there any 9 provisions which relate exclusively to the 10 dimensions , size and other building requirements of a 11 motion picture theater? 12 A Not within the City Zoning Ordinance. There may he i; 13 minimum code requirements that relate to the building 14 code as far as the minimum dimensions , but as far as 15 the zoning regulations are concerned, I am not 16 aware of any. 17 Q Now, I believe that you were designated to testify 18 about building code matters . Do you have any 19 knowledge of the building code of the City of Renton 20 relative to what requirements, if any, exist for the 21 construction of a motion picture theater? 22 A Not building code itself, no. 1 23 Q Would Mr . Nelson have that information? 24 A Yes, he would. 25 Q Do you have general knowledge with respect to the 66 0;J 1 parking, setback and land area and landscaping 2 requirements for a motion picture theater as opposed 3 to other uses that may exist in the various zones 4 where an adult motion picture theater would he 5 located? 6 A Yes , I do. 7 Q Do those restrictions generally relate to motion 8 picture theaters wherever they are located as opposed 9 to a distinction between adult motion picture 10 theaters in these particular areas and a general 11 release motion picture theater that may be located 12 elsewhere? 13 A I am not aware of any distinction, other than the 14 locational criteria for adult theaters . 15 Q So absent the locational criteria for adult theaters , 16 there is one set of rules that would apply to regular 17 theaters or general or adult motion picture theaters 18 if you were going to construct them? 19 A That ' s correct . 20 Q In other words , if I went into, say, the B business 21 district , wherever it is, up there, and I were to I I 22 build a general release motion picture theater , the 23 parking requirements would he the same there as they 24 would he, say, down in the M-P area? 25 A That 's correct . 67 IrLs 1 Q With respect to capacities, if I were to build within 2 the corporate limits of the City of Renton a motion 3 picture theater designed to accommodate 400 patrons , 4 would there be any minimum size requirements? 5 A Not as it relates to the zoning regulations. 6 Q I am talking about the building regulations . 7 A I can't speak to that specifically. 8 Q So you don't know what the building restrictions are; 9 that you have so many square feet per number of 10 people. 11 A No, I don't . 12 Q If I were to build a motion picture theater that were 13 to have a capacity for 400 people, are you aware of 14 -- are there any parking requirements -- 15 A Yes , there are. 16 Q -- that I would have to provide? 17 A Yes , there are. 18 Q What are the parking requirements? 19 A City's parking requirements for theaters would be one 20 parking space for each four fixed seats or one 21 parking space for each 100 square feet of floor area 22 where there are no fixed seats . 23 Q Is there a minimum size parking space? 24 A The minimum standards on parking stalls is 9 x 20 for 25 standard vehicle and eight -- I am sorry. I believe s♦ ' II 68 ,I J i it 1 it is 9 x 16 for compact vehicles and you can have 25 2 percent of the parking space in compact spaces . 3 Q 0 x 20 standard, 9 x 16 compact? 4 A I believe that 's correct . Either nine or eight . I 5 don't have it on the tip of my tongue. Would you 6 like me to review that specifically? 7 Q Well, yeah. Mr. Clemens, maybe I can cut through all 8 of this a little bit . And what I am postulating is a 9 theater of -- that has a building area of . 10 approximately 6 ,000 square feet that. contains 11 approximately 400 seats , has a concessionaire that 12 you would generally find in any conventional motion 13 picture theater, has a projection booth and has 14 restrooms for ladies and gentlemen and was built 15 according to code as opposed to wheelchair slots and 16 all the kinds of things that are needed according to 17 current building codes , and my question, when I 'get 18 right down to the bottom line, is how much area am I 19 going to need in a M-P zone or a H-1 zone or a L-1 20 zone in order to put that theater on that site 21 assuming setbacks and assuming all the other things 22 that you have in your standard ordinary j 23 requirements? 24 A Would you give me the seating again, please? A: 25 Q 400 seats . 1-1 � jr 69 1 A 400 seats . 2 Q A building size of approximately 100 x 60 or 6,000 3 square feet would probably accommodate that use. 4 A Okay. 5 Q Do you understand my question and what I want to 6 know? 7 A Yes , I can give you a rough estimate. 8 Q Okay. 9 A The seating -- the parking requirement for 400 seats 10 would be one per four seats which would be 100 11 parking spaces . And as a rule of thumb that we use 12 when we are just postulating, we would use 400 square 13 feet of site area to accommodate each parking space, 14 that would be both the space itself and the aisles 15 necessary to get in and out. So assuming 100 spaces , 16 and 400 square feet, that would require approximately 17 40,000 square feet plus the building, which would 18 come to 46 ,000 square feet , and assuming ten percent 19 error factor on top of that for necessary setbacks , 20 landscaping, I would say probably between 50,000 and 21. 52 ,000 square feet of site area. Depending on its 22 configuration and other factors that may not he 23 known. 24 Q Are the setback requirements the same in the M-P (: 25 zone as in the L-1 zone? 70 J I 1 A No, they are not . 2 Q You have given me a benchmark here of 50,000 to 3 52,000 square feet roughly. Would -- now, in which i 4 zone would that apply? 5 A That would apply in the B-1 zone, on up through our 6 zoning classifications , so that would be the B-1 , 7 L-1, H-1 and M-P. 1 8 Q Now, aren't there more stringent setback and 9 landscaping requirements in the M-P zone as opposed 10 to the H-1 zone? it A I believe the landscaping requirements may he 12 slightly more restrictive. The setback requirements 13 are essentially the same. The building setback 14 requirements between the M-P and H-1 . 15 Q Does there have to he any buffer zone in any of these 16 zones that would have to be provided for between your 17 use of the property and the adjoining properties? 18 A With the exception of the M-P zone, if there was a 19 determination that an alternate location within the 20 building envelope was appropriate, there might be a 21 requirement for landscaping separating one use from 22 another, but there is no specific requirement in any 23 of the zones for buffers between uses . 24 Q And the buffer zone would only be applicable in the ;AC 25 M-P zone? 1_J 71 1 A If appropriate. 2 Q And could the parking areas , the parking area that 3 you are providing, generally calculated in terms of -- 4 included in your setbacks? 5 A Yes. The 400. square feet per space and plus the ten 6 percent for fudge factor would include all of the 7 requirements that would typically apply. 8 Q So. I can park right up to the edge of my property 9 line. 10 A In some zones there is a minimum setback from the 11 street right-of-way -- I 'm sorry. In all zones there 4c 12 is a minimum of five-foot setback, landscape setback 13 from a public street to a parking lot. In the M-P 14 and I believe the H- 1 zone there is a ten-foot 15 landscape setback requirement . 1 16 Q Is that from the streets? 17 A From the street property line. 18 Q Not from sideline boundaries or rear boundaries? j 19 A No. 1 20 Q So I could do nothing there except put in 21 landscaping. 22 A That 's correct . 23 Q" Now, the 50,000 to 52 ,000 foot figure that you gave 24 me generally related or generally would have included 25 the setback requirements? • •. 72 1 A Yes. 2 Q So if I am going out to look for properties in these 3 areas and I want to build a 6,000 square foot 4 building with 400 seats , I know I am going to need -- 5 I have to find an acre and a quarter somewhere, 6 roughly? 7 A Approximately. 8 Q Can we go off the record for a minute? 9 (Discussion off the record) 10 BY MR. BURNS: 11 Q Mr. Clemens , the zoning classification, the 12 , particular zoning use for adult motion picture 13 theater did not exist prior to the enactment of 3526 14 within the City of Renton, did it? 15 A No. 16 Q So it is a new use classification, is it not , that 17 was created by this Ordinance? 18 A It is a distinction between two types of motion 19 picture theaters . 20 Q And that distinction did not exist prior to enactment 21 of the Ordinance, did it? 22 A That 's correct . \ 23 Q I take it that it is from documents that have been 24 filed by the City's attorneys that they are l: 25 contending that the use for an adult motion picture (I 73 II. 1 theater is a permitted use within the B-1 zone; are 2 you familiar with that contention? 3 A Yes , I am. 4 Q Now, I have reviewed your zoning code and I believe 5 that Section 4-711 sets forth the uses that are 6 allowed in the B-1 zone, does it not? 7 A Yes, it does . 8 Q Could you direct me where in that section you find 9 that an adult motion picture theater is a permitted 10 use within the B-1 business district? 11 A It is not specifically set forth; however, the City I, 12 has interpreted, since long prior to my coming to the 13 City, that commencing with B-1 district , a theater 14 use and many other uses that are not specifically set 15 forth in the B-1 district are allowed as being uses 16 similar to the uses specified in the B-1 district. 17 Q So it is not specifically set forth, you acknowledge 18 that ; that a theater use nor an adult theater use is 1 19 particularly set forth as a permitted use in the B-1 20 business district? 21 A No, it is not. 22 Q Under which of these many classifications , if any, do 23 you fit those uses or is it some other policy that 24 has created an unwritten use? 25 A The City in its interpretation requirements looks .. 7 (7_, 4 1 at the district as a whole to establish the types of 2 uses that are allowed, and in taking the district as 3 a whole, the City, by past practice, has established 4 that theaters , motels and hotels, which are not 5 specified within the zoning particularly, are uses 6 which are allowed in the zoning classification as 7 being similar to the whole array of uses that are 8 established in the -- that section of the code. 9 Q So I take it from your testimony that you do not 10 contend that a theater use or adult theater use falls 11 within any of the delineated classifications under ti 12 1 Section 4-711 but rather by way of past practice and ge neral eneral character of the City has administratively 14 determined it is an appropriate use for that 15 classification? 16 A That 's correct . 17 Q Now, is there any policy or statement or writing 18 which sets forth this determination by the City that , 19 first , theaters are permitted within the B-1 zone? 20 A I am not aware of any such written determination. 21 Q In your capacity as assistant planner or associate 22 planner, senior planner, acting planning director, 23 now policy development director, if such a writing 24 existed, would you he aware of it generally speaking? r( 25 A I would think so. I—J 75 . I 1 Q Is there any writing that exists by the City of 2 Renton or any policy that is set forth in writing 3 that sets forth that an adult motion picture theater 4 is a permitted use within the B-1 zone? 5 A I am not aware of any such written statement . 6 Q. So if I were to come to town and look at your zoning 7 code, it would not tell me on its face and there is 8 no writing that I could ask for that would tell me 9 that a theater or an adult motion picture theater was 10 a permitted use in the B-1 zone; is that correct? 11 MR. BARBER: Objection, asked and answered. 12 BY MR. BURNS: 13 Q Is that correct? 14 A The -- there would he no written document that we 15 could hand you; however, if you requested an 16 interpretation in writing from us, we would answer 17 affirmatively to both the theater use and adult 18 motion picture theater use with the exclusion of the 19 locational criteria for an adult motion picture ' 20 theater. 21 Q We are understanding each other just fine. 22 Now, I want you to assume for the purposes 23 of the next series of questions that T am going to 24 ask you that the City has not made that 25 determination; that a motion picture theater is a 76 J �I 1 permitted use in the B-1 zone. If a motion picture 2 theater wanted -- and I take it from reviewing the 3 criteria also for a M-P zone, that a motion picture 4 theater or an adult motion picture theater is not a 5 permitted use in writing, included within the 6 designated permitted uses , is it? 7 A The M-P zone. 8 Q Yes. 9 A That is correct , sir. 10 Q And the answer would be the same for the L-1 zone? 11 A Yes . 12 Q And for the H-1 zone? s. 13 A Yes. 14 Q And the reason I take it that you indicate that those 15 uses are included within the zones is by reason of 16 the fact that any use that 's permitted in a B-1 zone 17 is also permitted in these zones. 18 A That 's correct . 19 Q Now, assuming for the purposes of my next series of 20 questions that the theater or adult motion picture 21 theater is not a permitted use in the B-1 zone, what 22 would be the proper zoning procedure to get or to use 23 a parcel of property located in a M-P zone as a 24 theater ; would that he by special permit , conditional 25 use or variance? . i 77 1 MR. BARBER: Object to the form of the 2 question. 3 MR. BURNS: Do you understand my question? 4 A Yes. If a person desired to construct any type of 5 motion picture theater within the M-P zone, the 6 criteria would be application to the City for site 7 plan approval within the allowed uses in the M-P zone 8 district . 9 BY MR. BURNS: 10 Q Now, if a motion picture theater use were not an 11 allowed use because we have a dispute as to whether 12 it is an allowed use or not and I want you to assume 13 it is not an allowed use-- 14 A Okay. 15 Q -- would, in order to build that building or 16 structure or you develop it for that use as a theater 17 or adult motion picture theater , would you he 18 required to get a conditional use permit , a special 19 permit or a variance? 20 MR. BARBER: Object to the form of this 21 question also. 22 MR. BURNS: You understand it? 23 A Under the assumption that the use was not allowed 24 within the district , I would think that the probable 25 form would be a conditional use permit . 78 1 BY MR. BURNS: 2 Q Now, who -- and you make that assumption based upon 3 your experience in these various capacities that you 4 have held in connection with zoning enforcement 5 within the City of Renton; is that correct? 6 A Yes . 7 Q Now, if your assumption -- who would overrule you as 8 to your assumption as to the appropriate procedure? 9 A The appropriate procedure in a case where there is a 10 dispute over whether a use is or is not allowed is an 11 appeal to the land use hearing examiner . 4c12 Q So if I came in and, for instance, let 's assume that i 13 myclient came to town and he wanted to build a 14 theater in the M-P zone and he contended that he was , 15 allowed to build it there as a matter of right , 16 assuming that he met the other criteria for that 17 zone, and the City said no, you aren 't , that ' s not 18 an appropriate use for that zone, his remedy would he 19 appeal to the land use hearing examiner; is that 20 correct? 21 MR. BARBER: Object again to the form of 22 the question. You may answer . 23 A The appeal would be to the examiner , that 's correct . 24 BY MR. BURNS: 1: 25 Q And what provisions of your zoning code govern that 79 1 appeal process? 2 A The entirety of the ordinance which is Chapter 30 of 3 Title 4. It is a code that 's outside of the zoning 4 ordinance itself. 5 Q Do you have that here with you over there? 6 A Yes. 7 Q May I look at. it? 8 MR. KELLOGG: Let 's go off the record for a 9 minute. 10 (Discussion off the record)? 11 A I believe the second section establishes the items 12 that the examiner is empowered to consider. It is a 13 whole list. 14 BY MR. BURNS: 15 Q Under "duties"? 16 A Yeah. 17 Q Now, in our assumed example here, we have a dispute ;I 18 as to whether a use is an appropriate use and my 19 client has appealed to the City hearing examiner and 20 he has had a hearing in conformity with the 21 procedures set forth by your city code and the 22 hearing examiner, in my example that we are going 23 through, decides in favor of the City, that it is not 24 an allowed use within that particular zone. Are you . 25 with me? • 1 ii • " 80 :J 1 A Yes . 2 Q Okay. My client still desires to proceed with his 3 project and build a theater. What would be his next 4 step in trying to accomplish that goal? 5 MR. BARBER: Object to the form; 6 speculation and assumes facts not in evidence. 7 Answer if you can. 8 A There are two possibilities : one is an appeal. to 9 Superior Court for a determination in Superior Court 10 as to the correctness of the City's position. 11 Alternately, I am going to have to review the 12 conditional use section to see whether there is _ f 13 sufficient flexibility. 14 (Discussion off the record) 15 A I am not sure whether there would be any alternate 16 approach within the City's code if the examiner 17 concluded that it was not a permitted use. The -- 18. there is a possibility, depending on the specific 19 circumstances what zone it is in, that a conditional 20 use permit to allow a less restricted use in a more 21 restricted district could he possible, but failing 22 that , the only alternative would be to request the 23 City Council to amend the ordinance to set forth that 24 use specifically as permitted or conditional use. 25 BY MR. BURNS: 1_J 81 J 1 Q I see or I find in your zone code three different 2 kinds of possible avenues , one being the special 3 permit, the conditional use or the variance. In your 4 experience and based upon your position as the 5 enforcement officer for the zoning code, what is the 6 purpose and use of the special permit as it applies j 7 to your zoning ordinance? 8 A The special permit provisions only apply to those 9 uses that are specifically set out in the code as 10 being permissible with a special permit . 11 Q Could you refer me to the section of your Ordinance 12 that you're referring to? 13 A Would be 4-722 , Paragraph B. 14 Q 4-722B talks about particular or gives the hearing 15 examiner power to issue special permits for such 16 uses . Which uses are those? 17 A Those would be uses specified elsewhere in the 18 ordinance which particularly set forth that the 19 standards to be used are a special permit approval. 20 And there are numerous. 21. Q Can you identify -- well, let 's do it by 22 elimination. Is a motion picture theater or an adult 23 theater a use that is set forth anywhere in your 24 Ordinance that would be subject to a special use { 25 permit? • 82 1 A Not to the best of my knowledge. 2 Q So the use of a special permit would not he 3 applicable in any circumstances for a theater or 4 adult motion picture theater? 5 MR. BARBER: Object to the form of the 6 question. 7 •A Not to the best of my knowledge. 11 8 BY MR. BURNS: 11, 9 Q Now, what is the purpose of a conditional use permit? 10 A Conditional use permit is quite similar to a special 11 permit in -- at lease in terms of its form. Although 12 it does provide some additional latitude to allow 13 uses that fit into more intensive district 's , such as 14 industrial districts can be moved down to less 15 intensive districts , for instance a business 16 district . If the nature of that specific use and its 17 specific design is compatible with the more 18 restrictive zoning classification. 19 Q And in the example that we were using, it was your 20 testimony that this may be a possible approach in the 21 event that it was determined that a theater use was 22 not an appropriate use in the zone where I wanted to 23 build it , where my client wanted to build it . 24 A Yes . The -- it is possible under the section that I : 25 have just discussed to apply under that provision to 83 1 move, say, a use allowed in a light industrial zone 2 down to a B-1 zone based upon its specific design. 3 And if your contention is it is not specified 4 anywhere in the code, I am not sure that section 5 would apply. I would have to think about it. 6 Q Okay. So if I understand what you're telling me, I 7 that 's really moving a specified use, the conditional 8 use permit is used for moving a specified use from 9 one zone to a less intensive zone. 10 A Less intensive but more restrictive. it Q Okay. Now, what is the use of a variance as that 12 term is used in your zoning code? 13 A The va riance is intended to provide for the 14 modification of specified standards. It is not 15 appropriate for modifying use. Variance is -- there 16 is no variance to a use. But there are variances to 17 specified standards within the Ordinance such as 18 height , setback, parking requirements and so on. 19 Q In your experience as an enforcer of the zoning code 20 of the City of Renton, have you ever come upon 21 occasions where somebody has wanted to put in a use 22 or put a property to a use that was not covered by 23 your zoning code? 24 A Yes . 25 Q And what procedures did you follow in arriving at an i 84 J 1 administrative determination as to whether -- as to 2 what you do? 3 A What we have requested in every case that I am aware 4 of is a letter from the proponent illustrating what 5 the use is that they are intending, trying to give us 6 as much detail as possible as to its nature, 7 character extent , and we compare that to all of the 8 standards applicable to each zoning classification. 9 Once we have determined whether a use fits or doesn't 10 fit, within a particular zone, we respond in writing 11 as to our conclusion and indicate whether we either 12 found that it was appropriate or inappropriate. And 13 establish that if they -- if the proponent found the 14 use or our determination inappropriate in their case, 15 that they do have appeal rights to the hearing 16 examiner for consideration. 17 Q In all those instances , did you designate to them 18 which zone their intended use would he appropriate? 19 A To the best of my knowledge. 20 Q Or -- well , in the context of those cases that you 21 have worked on of that nature, have they requested 22 the use be in a particular area? 23 A Let me give you an example. 24 Q Okay. 25 A Typical case is a machine shop. Machine shops - - now i 1 (l 85 1 maybe that 's not a perfect example, but it is close 2 enough. Machine shop in a business zone. Typically 3 a machine shop would not he appropriate in a business 4 zone. It is basically a light industrial use. The 5 applicant may be able to provide us with specific 6 information about the nature of this machine shop 7 that it is of such a scale that it is appropriate in 8 the B-1 zone, very little in the way of mechanical 9 equipment and it does not fit in the L-1 zone but 10 appropriate in a B-1 zone and we would so indicate. 11 On the other hand, we might conclude that no, the use 12 you propose based upon the description that you have 1 givenlight us is still a li ht industrial use and should 14 be located in a light industrial zone. 15 Q In the example you have given, is a machine shop use 16 a use that ' s not covered anywhere in your zoning code? 17 A I was trying to recall after I gave it as an example. 18 No, it is not specifically set forth, although there 19 is a section that would be somewhat analogous in a 20 light manufacturing use, using power of specified 21 quantity. 22 Q In terms of making these decisions , are -- when a use 23 is not a specified use, is there - - are there any 24 written criteria, any objective guidelines that you 25 go upon -- that you rely upon to make your decision 86 1 or do you rely upon an evaluation, a subjective 2 evaluation of the contemplated use and the 3 surrounding businesses? 4 A Primarily the criteria that we would look at is the 5 simlarity to similar uses in the code that are 6 specified in the code and good professional judgment . 7 That 's what we are trained for and paid to do. 8 Q And when you say good professional judgment , what 9 factors are you applying? 10 A Typical health, safety and welfare concepts, the 11 general intensity of the use, principle that would 12 suggest whether a use does or doesn't affect 13 adjoining uses , so on. Noise as an example. 14 Q Are the procedures for obtaining a conditional use 15 permit those that are contained within this Chapter 16 30 or Section 30 of Chapter 4? 17 A I believe the standards for application -- it is a 18 combination of Section 4-722 capital letter F, and 19 Chapter 30 of Title 4 . We have prepared written 20 procedures that we would make available to any 21 applicant for a conditional use permit . 22 Q What are these written procedures that you have, what 23 \ do they consist of? 24 A They would specify the number of copies of the 25 application, affidavits of ownership, number of 87 1 copies of plans and what those plans should consist 2 of. 3 Q Are there any written criteria or objective standards 4 that are used or applied by the hearing examiner in 5 reaching his decision that are contained anywhere 6 other than in the words of the Ordinance in 720 - - 7 4-722(F) and in Chapter 30 of or Section 30 of 8 Chapter 4? 9 A The -- in addition to the criteria specified in both 10 of those locations, the City's comprehensive plan 11 documents would also apply as outgrowths of sections 12 already specified here in the Ordinance itself. 13 Q In particular , which sections of the comprehensive 14 plan? 15 A The comprehensive plan consists of a number of . 16 elements . The land use plan is the map which you 17 have previously discussed here today. There is 18 language setting forth goals and policies which were 19 adopted originally in 1965 and supplemented in 1980, 20 which would be utilized by the examiner in his 21. review. Depending on the specific type of use, he 22 might also review utility or transportation sections , 23 of the comprehensive plan. 24 Q In particular , if we had -- if the hearing examiner 25 was considering a conditional use permit application I I a ( 88 J 1 relative to a motion picture theater or an adult 2 motion picture theater , can you tell me which 1 3 portions of the comprehensive plan would be 4 applicable? 5 A The -- under the assumption that a conditional use 6 permit application would be required, I would assume 7 that he would primarily look to the adopted policies 8 of the comprehensive plan, those are broken into 9 -somewhere between 12 and 15 sections dealing with 10 everything from residential uses to the environment 11 and a number of other issues . I would think that the ( 12 policies element of the document would he where he 13 would seek guidance . 14 Q The goals and policies of -- section of the 15 documents? 16 A That 's correct . 17 Q Comprehensive plan available to anyone who wants a 18 copy of it? 19 A Yes . 20 Q Is there anything else that the hearing examiner 21 would look to for guidance in making a decision other 22 than the three areas that we have now identified , 23 Section 4-722(F) , Chapter 30 of -- Section 4 and the 24 goals and policies? 25 A Depending on the particular issue, he might review C__ 4: $9 1 other documents such as past precedent in the legal 2 area, definitions either in the common terms found in 3 the dictionary or in planning books or publications. 4 5 MR BURNS: Mr. Clemens, I think that 's all 6 I have for today. I would like to recess for the day 7 and continue tomorrow after I have had a chance to 8 review these documents and hopefully we will finish 9 up early in the morning. Is that okay with you, 10 Counsel? 11 MR. KELLOGG : You bet . ((. 12 (WHEREUPON, at 3 : 50 p.m. the deposition was 13 adjourned. Signature was reserved 14 (Exhibit No. 1. marked for identification) 15 16 17 18 19 20 21. 22 23 24 25 (r, 90 1 AFFIDAVIT 2 STATE OF WASHINGTON ) ) ss 3 COUNTY OF KING ) 4 I have read my within deposition, and the same 5 is true and accurate, save and except for changes and/or 6 corrections , if any, as indicated by me on the CORRECTIONS 7 flyleaf page hereof. 8 9 10 DAVID R. CLEMENS 11 12 13 14 SUBSCRIBED AND SWORN to, before me, this 15 day of , 1982 . 16 17 NOTARY PUBLIC in and for the 18 State of Washington, residing at 19 20 21 22 23 24 25 41. (I 1 CERTIFICATE 2 STATE OF WASHINGTON) ss 3 COUNTY OF KING ) 4 I, the undersigned Notary Public in and for the 5 State of Washington, do hereby certify: 6 That the annexed and foregoing deposition of 7 each witness named herein was taken stenographically 8 before me and reduced to typewriting under my direction; 9 I further certify that each said witness 10 examined, read and signed his deposition after the same 11 was transcribed, unless indicated in the record that the 12 parties and each witness waive the signing; 13 I further certify that all objections made at 14 the time of said examination to my qualifications or the 15 manner of taking each deposition, or to the conduct of any 16 party, have been noted by me upon each said deposition; 17 I further certify that I am not a relative or 18 employee or attorney or counsel of any of the parties to 19 said action, or a relative or employee of any such 20 attorney or counsel , and that I am not financially 21 interested in the said action or the outcome thereof ; 22 I further certify that each witness before 23 examination was by me duly sworn to testify the truth, the 24 whole truth and nothing but the truth; ji 25 I further certify that the deposition, as rI 92 _ J 1 transcribed, is a full, true and correct transcript of the 2 testimony, including questions and answers , and all 3 objections, motions and exceptions of counsel made and 4 taken at the time of the foregoing examination; 5 I further certify that I am sealing the 6 deposition in an envelope with the title of the above 7 cause thereon, and marked "Deposition" with the name of 8 each witness , and promptly delivering the same to the 9 Clerk of the above-entitled Court; 10 IN WITNESS WHEREOF, I have hereunto set my hand 11 and affixed my official seal this day of4: 12 19 . 13 14 15 Notary Public in the State of Washington, residing 16 at Seattle. 17 18 19 20 21. 22 23 24 25 90 1 AFFIDAVIT 2 STATE OF WASHINGTON ) ) ss 3 COUNTY OF KING ) 4 I have read my within deposition, and the same S is true and accurate, save and except for changes and/or 6 corrections , if. any, as indicated by me on the CORRECTIONS 7 flyleaf page hereof. 8 9 10 ID R. LEMENS 11 11. 13 14 SUBSCRIBED AND SWORN to, before me, this 15 day of ,. 1982 . 16 17 N in an or e 18 State Washington, residing at 19 20 • '. 21 22 23 25 Renton City Council 3/15/82 Page 3 OLD BUSINESS Committee of Council President Clymer presented Committee of the Whole the Whole report regarding retroactive insurance as referred by Council Insurance on 3/8/82. The report recommended that the subject matter of insurance be referred to the Ways and Means Committee to be held for monitoring. The report stated that for the record, the City Council action to implement the Retro Insurance Plan has resulted in $45,535.37 currently set aside in a special reserve fund which includes a refund of 59,703. MOVED BY CLYMER, SECOND STREDICKE, COUNCIL ADOPT REPORT. CARRIED. Clymer Goes Council President Clymer submitted report of his trip to to Washington Washington, D. C. 2/27/82 through 3/2/82 for the annual Congres- sional City Conference for National League of Cities. Clymer explained meeting with other local government officials and the state's congressional delegation; 2,500 city officials from around the country met to discuss policy and work sessions on issues involving housing, transportation, job training, munici- pal finance, liability and creation of urban enterprise zones. Clymer noted appointments and meetings to present Cities' views to members of the House and Senate and meeting with Washington dele- gates to present local problems. PS COG Councilman Hughes reported Puget Sound Council of Government activities, noting growth of King County, but greater growth of Pierce, Kitsap and Snohomish Counties; solid waste discussions with King and Snohomish Counties are progressing including energy and sludge problems; also discussions re water quality. Councilman Rockhill asked the Metro Park and Ride lot landscaping be encouraged. Mayor Shinpoch noted State Highway Dept. is responsible. ORDINANCES AND RESOLUTIONS Ways and Means Ways and Means Committee Chairman Stredicke presented report Committee recommending second and final readings of an ordinance providing Ordinance #3618 for vacation of an alley as petitioned by the Salvation Army Vacation of Alley VAC-01-82; alley located north of Tobin St. Following reading, Salvation Army it was MOVED BY STREDICKE, SECOND HUGHES, ADOPT THE ORDINANCE AS PRESENTED. ROLL CALL: ALL AYES. CARRIED. Resolution #2441 The Ways and Means Committee recommended reading and adoption Teleprompter of a resolution providing for reorganization of Tele ter Reorganization Cable TV as Group W. MOVED BY STREDICKE, SECOND CLYMER, ADOPT THE RESOLUTION AS READ. CARRIED. NEW BUSINESS Executive Council President Clymer requested an Executive Session be held Session following regular session to discussion litigation against the City. Funds for Council Member Mathews congratulated Council regarding acquisition Cedar River Trail of property along Cedar River, explaining strong probability for Property 75% funding of that portion of Cedar River Trail known as Thomas property, that the City ranked second out of 45 proposals for financial support from Inter Agency Committee for Outdoor Recrea- tion. Councilwoman Mathews explained final session 3/25/82; also noting continuous ownership from the mouth of the Cedar to proposed King County Park outside City limits. Adult Land Use MOVED BY ROCKHILL, SECOND CLYMER, REFER SUBJECT OF ADULT ENTERTAIN- MENT LAND USE TO THE PLANNING AND DEVELOPMENT COMMITTEE. CARRIED. Boards and Councilman Rockhill expressed displeasure at newletters from Commissions City Boards and Commissions and called for policy. MOVED BY HUGHES, SECOND ROCKHILL, REFER SUBJECT OF BOARDS AND COMMISSIONS TO THE COMMITTEE OF THE WHOLE FOR DISCUSSION. Possible expansion, combination or elimination to be discussed. MOTION CARRIED. Renton City Council 3/15/82 Page 4 Visit Sister City Mayor Shinpoch noted invitation from Renton's Sister City Nishiwaki , Japan, and inquired if any Council Members interested. ADMINISTRATIVE Mayor Shinpoch reported on her trip to Washington, D.C. for REPORT annual National League of Cities Conference, noting cities must look to State for funds. The Mayor expressed disappointment in that the legislature has disallowed development fees and noted invitation for Wednesday afternoon from AWC that she plans to attend session to favor systems development fees. Marine Patrol Mayor Shinpoch reported King County Marine Patrol will be in operation regardless of previous report. Mayor Shinpoch inquired whether Council would reverse their decision and agree to dis- cuss the patrol , noting other cities must therefore pick up that portion of cost. Discussion ensued wherein it was noted home owners on the lake furnish emergency service; costs also discussed that county pays 50% and cities pay 50%; funds not budgeted. Sales Tax MOVED BY STREDICKE, SECOND REED, COUNCIL PRESIDENT REDRAFT PREVIOUS LETTER TO LEGISLATURE OPPOSING DELETION OF SYSTEMS DEVELOPMENT FEES WITH ADOPTION OF 1/U SALES TAX FOR CITIES. Councilman Stredicke explained his opposition to tax existing businesses to accomodate expansion for others. MOTION CARRIED. Executive Session MOVED BY CLYMER, SECOND STREDICKE, COUNCIL HOLD EXECUTIVE SESSION TO DISCUSS LITIGATION AND RETURN TO REGULAR SESSION ONLY FOR ROLL CALL. CARRIED. 9:58 p.m. ADJOURNMENT Council returned to regular session. Roll was called. All Council Members were present. MOVED BY CLYMER, SECOND STREDICKE, MEETING ADJOURN. CARRIED. 10:20 p.m. 4 / I Q. Delores A. Mead, C. . C. City Clerk r OF R�� J tiOFFICE OF THE.CITY ATTORNEY • RENTON,WASHINGTO U %% ©. Z, POST OFFICE BOX 626 100 2nd AVENUE BUILDING • RENTON,WASHINGTON 98055 255-8678 0 amo LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTOR o.0 43' DAVID M. DEAN, ASSISTANT CITY ATTOR March 11, 1982 MARK E.BARBER, ASSISTANT CITY ATTOR qTF� SEP'� �F. TO : MAYOR BARBARA SHINPOCH MEMBERS OF CITY COUNCIL FROM: Daniel Kellogg, Assistant City Attorney RE: Forbes We attach a copy of our Reply Brief which has been filed in response to Mr. Forbes' Brief in Opposition to our Motion to Dismiss. You will no doubt be, informed in the press within the next few days of the filing of a Petition for Removal of our State court action to Federal District Court which was filed on March 8, 1982 by Mr. Forbes' lawyers . We anticipated that this might be their response to our filing of the State court action. . The statute which allows removal of State court actions was designed to protect litigants who .are entitled to protection by the Federal courts from harrassing State actions in an inconsistent and possibly hostile local court. For example, citizens of different states may seek the jurisdiction of the Federal court based upon the diversity of their citizenship . We believe that the removal petition is simply another procedural ploy -which Mr. Forbes' lawyers will use in an attempt to keep this matter in Federal court, not because he is entitled to stay in Federal court as a matter of right. Tomorrow we will be filing our Motion to Remand the State court action back to the King County Superior Court for proceedings on the merits . It is hard to estimate whether the Federal court will grant our Motion to Remand. However, we expect that if the court is inclined to grant our Motion for Dismissal of the main action that the Federal court will also grant our \ . Motion to Remand. However, we do not expect the court to find that the State court action must be remanded back to State court as a matter of right. It is interesting to note that although the removal petition `was originally filed before Judge Rothstein in Federal court, Judge McGovern has intervened to order transfer of the case to his jurisdiction and consolidation of the cases with our main action in Federal court. This removed the necessity of our asking Judge McGovern to do those actions . Mr. Clancy is arriving in town this evening and will argue the Motion on behalf of the City. The Motion to Dismiss will be heard at 9 : 30 A.M. on March 12, 1982 before Magistrate Sweigert.. The Magistrate may give an oral decision at the close of argument, or he may reserve ruling to study the briefs following oral argument. The Magistrate' s report will be referred to Judge. McGovern for final decision and both parties will have the opportunity to object to his report and recommendations in the event it is unfavorable to their position. As you are aware, the trial on the preliminary injunction request originally scheduled for March 19, 1982 has been continued indefinitely pending disposition of our Motion. Therefore, we are scheduling Mr. Forbes' deposition for Friday afternoon, March 19, 1982. Mr. Clancy will be in Renton to take that deposition. We intend to examine Mr. Forbes, under oath, as to the identity of the ownership of the theaters and his two corporations, the allegations of loss and irreparable harm which he has made in his complaint for damages against the City, the identity of other theaters which he or other organizations which he controls may own, and the films which they have exhibited over the past few months . We trust that the information gathered will help protect the City from a claim for damages under Section 1983 and attorney' s fees under Section 1988 of the Civil Rights Act, and will establish that the films which Mr . Forbes has shown and intends to show are not "pornography" , but are in fact obscene as that term is defined in Miller v. California, in order to remove the cloak of respectablity and claim of constitutional infringement behind which Mr. Forbes now rests. -2- We trust that you will address any questions that you may have concerning these proceeding to our office for reply. We appreciate the level of support which the Council has shown to our efforts to this point. We hope that this summary will serve to adequately inform you of recent developments and our course of action in the immediate future. Once again, it is important that the contents of this letter not be disclosed to other parties in order for us to maintain the confidentiality of our counsel with you, our client. Very truly yours, • Daniel Kellogg DK:bjm cc: Mr . James J. Clancy • • • • 2 . 3 4 5 6 7, 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON g AT SEATTLE 10 PLAYTIME THEATRES, INC. , a , ) Washington corporation, ) .11 et al , ) NO. C82-59M ) ,12 Plaintiffs , )- DEFENDANTS' REPLY MEMORANDUM ) IN SUPPORT OF DEFENDANTS' 13 vs ) MOTION TO DISMISS ' 14 CITY OF RENTON , et al , ) ) _ 15 Defendants . ) ) 16 17 I 18 SUMMARY OF ARGUMENT 19 A. Sufficiency of State Court Pleadings : 20 Plaintiff ' s Memorandum in Opposition to Defendants ' 21 Motion to Dismiss calls into question the jurisdiction of the 22 State Court to decide the declaratory judgment action 23 commenced by Defendants . First, it is not the proper 24 function of the United States District Court to test the 25 sufficiency of the pleadings filed in a State Court action . 26 ' Such a test should await the ruling of the King County 27 Superior Court. Secondly , the City of Renton has rights or 28 other legal relations which are affected by a municipal 29 ordinance , and therefore may seek the jurisdiction of . the Z0 State Court to obtain a declaration of the rights and '31 relations of the parties under that ordinance. RCW '7.24.020. 32 Third , Plaintiffs attack the face of their own complaint DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT WARREN & KELLOGG. P.S. OF DEFENDANTS' MOTION TO DISMISS ATTORNEYS AT LAW goo eo.eEcoNo eT..P.O.eox eze PAGE1 RENTON. WASHINGTON 98057 253-8878 ], herein by attacking the . State Court jurisdiction. Neither 2 court may render an advisory opinion , with limited 3 exceptions . Therefore , Plaintiff' s objection to the State 4 Court jurisdiction may preclude their invocation of this 5 Court ' s jurisdiction under 28 USC 2201 . 6 B. The Doctrine of Abstention Has Now Become .a Doctrine of Dismissal in Section 1983 Cases. 7 The City is entitled to an order of dismissal of the • 8 Plaintiff's complaint because Plaintiff has filed to state a 9 claim upon which relief can be granted under the doctrine of 10 Huffman v . Pursue , Ltd which precluded the granting of 11 injunctive or declaratory relief in Section 1983 actions , and 12 under the cases of Allan v. McCrory and Parratt v. Taylor 13 which precluded the award of damages in Section 1983 actions , ' 14 unless the applicable exceptions are shown to exist on the 15 face_ of the Plaintiff ' s complaint . The doctrine of 16 "abstention" initially set forth in Huffman has now become a 17 doctrine of "dismissal" under the cases following Huffman. 18 C. Exhaustion of Administrative Remedies: 19 Plaintiffs have created a strawman by their own peculiar 20 construction of the Renton zoning code to allege requirement 21 22 of issuance of a conditional use or other permit prior to 23 commencement of their proposed land use. This strawman is a 24 complete fiction as Plaintiffs could easily have determined 25 by simply making an administrative inquiry of the City of 26 Renton . Plaintiffs attack on fictional administrative 27 procedures is a sham. 28 29 30 31 . 32 . DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT . WARREN & KELLOGG. P.S. ATTORN OF DEFENDANTS' MOTION TO DISMISS - too so.SECOND SECOND tt AT LAW 6T.,P.O.taox ase • PAGE 2 RENTON. WASHINGTON 98057 255-8878 ' 1I • 1 II 2 LEGAL ARGUMENT 3 A. STATUS OF STATE COURT ACTION: 4 1 . Plaintiff ' s Petition to Remove Should be Disregarded for Purpose 5 of This Motion. 6 In Plaintiff ' s Memorandum in Opposition , Plaintiffs 7 argue that the State Court has no jurisdiction' to decide the 8 declaratory judgment action filed by the City, although they 9 were served with process in the State action on February 25 , 10 1982, and took no steps to challenge the jurisdiction of the • 11 Court or the. sufficiency of the complaint filed by the City. 12 Instead , they filed a Petition to Remove . the State Court 13 action to Federal Court on Monday, March 8, 1982, which was 14 filed under Cause Number C82-263R before this Court . 15 Prior to the hearing of Defendants ' Motion. to Dismiss , 16 the City of Renton will have filed a motion .for an order 17 remanding the State Court case back to the King County 18 Superior Court , and for the award of costs pursuant to 28 USC 19 1447 (c) . The Plaintiffs hope to urge this Court to seek the 20 path of least resistance by denying Defendants ' motion to ' 21 dismiss upon a . claim that an action in State Court is no 22 longer pending until an order of remand is entered . The 23 Plaintiff' s procedural posturing should not prevent this 24 Court from entering the order of dismissal sought by 25 Defendants herein . 26 2. The State Court has Jurisdiction to 27 Enter Declaratory Judgment. 28 In 1935 the State of Washington enacted the Uniform 29 Declaratory Judgment Act (codified as Chapter 7.24 RCW) which has been adopted in over 40 jurisdictions . The Act is to be 30 31 liberally construed and administered, and is remedial in 32 nature. RCW 7.24. 120.; Sorenson v. Bellingham, 80 Wn .2d . 547, DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT WARREN & KELLOGG. P.S. ATTORNEYS AT LAW OF DEFENDANTS' MOTION TO DISMISS 'o0.o.SECOND ST..P.o.Sox..S PAGE 3 RENTON. WASHINOTON 98057 255-e878 1 559 , 496 P . 2d 512 ( 1972 ) . The question of whether 2 jurisdiction exists for the declaratory action commenced by 3 the City should be properly left to the State Court for 4 decision under its pleading rules which allow liberal 5 amendment of pleadings. Superior Court Civil Rule 15. 6 Plaintiffs state in their Memorandum in Opposition (Page 7 4 , line 12-13) that the City seeks merely a declaratory 8: judgment that the. ordinance is 'constitutional . . However , an 9 examination of Renton ' s Prayer for Relief as set forth in the 10 copy of the complaint attached to Defendants ' Memorandum of 11 Points and Authorities in Support of Defendants ' Motion to 12 Dismiss , will indicate that much more is sought. The City' s .13 . principal prayer is for a declaration that the ordinance is 14 constitutional as applied to the specific land use, proposed 15 by Plaintiffs herein . 16 Plaintiffs contend that the City 's State Court complaint 17 seeks a mere advisory opinion . This erroneous conclusion 18 undermines Plaintiffs ' entire review of Washington law 19 regarding declaratory judgments . Although a determination of 20 the jurisdiction of the State Court and the sufficiency of 21 the complaint therein must await a determination by the State 22 Court , it is important for this Court to be fully advised of 23 the provisions of the Washington Declaratory Judgment Act. 24 RCW 7. 24. 020 establishes the criteria upon which a • 25 person may seek a declaratory judgment as follows : 26 "A person . . . whose right . . . or other legal 27 relations are. affected by a . . . municipal ordinance . . . may have determined any question of 28 construction or validity arising under the ordinance . . . and obtain a declaration o.f rights , 29 status or other legal relations thereunder . " 30 Plaintiffs ' assertion that the . City has 'no standing to 31 request a declaratory judgment . is •based upon two false 32 premises. First , Plaintiffs contend that the City is not a DEFENDANTS' REPLY MEMORANDUM IN SUPPORT WARREN & KELL06G. P.S. ATToreNETs AT LAW OF DEFENDANTS ' MOTION TO DISMISS toe SO.IECOND ST..P.O.SOX 0Ee PAGE 4 RENTON, WASHINGTON 9e057 255.ee78 • II 1 person whose rights or status are affected . Other than the 2 City 's obvious interest in the validity and application of 3 its ordinance , and the integrity of its land use planning 4 municipal function , the City now has potential exposure to 5 liability for damages under 28 U. S.C. Section 1983 , Monell v. 6 Dept. of Soc. Serv . of New York, 436 U.S. 658 , 56 L. Fd 2d ;I 7 611 , 98 S. Ct. 2018 ( 1978) , and for costs and expenses under 8 28 U. S.C. Section 1988 , Owen v. City of Independence, 445 9 U .S. 622, 63 L.Ed 2d 673 , 100 S. Ct. 1398 ( 1980) . 10 RCW 7.24. 130 includes "municipal corporations" within 11 the definition of "person" for the purpose of the Declaratory 12 Judgment Act . The New Jersey courts , construing the Uniform 13 Declaratory Judgment Act , have held that municipal 14 corporations are "persons" within the meaning of that section 15 and have a sufficient interest to obtain a declaration of 16 rights , County of Bergen v. Port of New York Authority, 32 17 N. J. 303 , 160 A. 2d 811 , 813 ( 1960) , of even an ordinance not 18 yet adopted . Newark v . Benjamin , 144 N. J. Super. 58, 364 19 A. 2d 563 ( 1976) , aff. 144 N. J. Super. 389 , 365 A. 2d 945 , aff. 20 75 N.J . 311 , 381 A.2d 793 . • 21 Second , the City seeks a declaration of the validity and 22 applicability of the Ordinance which Plaintiffs dispute. It 23 cannot be argued in good conscience that the City and the 24 Plaintiffs are not in actual controversy as required by the 25 law of the State of Washington. The principal elements of a 26 justiciabl.e controversy under the Washington Declaratory 27 Judgment Act are as follows : 28 1 . The parties must have existing and genuine , as 29 distinguished from theoretical rights or interests . 30 2. The controversy must be one upon which the 31 judgment of the Court may effectively operate , as distinguished from .a debate or argument 32 evoking a purely political , administrative philosophical or academic conclusion. DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT WARREN & KELLOGG. P.S.ATTORNEYS AT LAW OF DEFENDANTS ' MOTION TO DISMISS 100 so.=comp$T..P.O.MOSSES PAGE 5 RENTON. WASHINGTON 90087 233-8678 • 1 3. The controversy must be such that a judicial determination will have the force and effect 2 of a final judgment in law or decree in equity upon the rights , status or other legal 3 relationship of one or, more of the real parties in interest. 4 4 . The proceeding must be genuinely adversary in 5 character and not a mere debate, but advanced with sufficient militancy to engender a 6 thorough research and analysis of the major issues . 7 State ex rel O'Connell v. Dubuque , 68 Wn.2d. 553 , 558 , 413 8 P . 2d . 972 ( 1966 ) . The first element was refined in 9 Diversified Industries v. Ripley, 82 Wn.2d. 811 , 815 , 514 10 P.2d. 137 ( 1973) , by further explanation that the justiciable 11 controversy must be " . . . an actual , present and existing 12 dispute , or the mature seeds of one, as distinguished from a ' 13 possible , dormant , hypothetical , speculative , or moot 14 disagreement . . . . " 15 , Under any reasonable construction of the facts , this 16 Court must agree that the City of Renton and the Plaintiffs 17 are engaged in an actual ,• present and existing dispute, 18 19 between parties having • genuine , opposing , direct and 20 substantial interests. A judicial declaration by the State 21 Court of the validity. and applicability of the ordinance will 22 have the force and effect of a final judgment in law upon the 23 parties . Finally, in view of the considerable time and 24 effort expended by the parties herein , it must be clear to 25 the court that these proceedings are genuinely adversary in 26 character an.d are advanced with sufficient militancy to 27 engender a thorough research and analysis of the major 28 issues . . 29 In any event , the issues involved in this litigation are 30 of such great and overriding public moment that the 31 Washington Court will take jurisdiction of this matter to 32 determine the validity and applicability of the ordinance in DEFENDANTS ' REPLY. MEMORANDUM IN SUPPORT WARREN & KEL ATTORNEYS ATT LAW P.S. AW OF DEFENDANTS ' MOTION TO DISMISS Ioo SO.elcONDST..P.O.BOX Ole PAGE 6 RlNTON. WASHINOTON 98067 255-8678 • 1 question even in the absence of a justiciable controversy. 2 See O 'Connell , supra , and In re Elliott , ' 74 Wn.2d . 600, 614 , 3 446 P.2d 347 , ( 1968) , where the Court reviewed the genesis of 4 the "great public interest" exception in the case of Huntamer 5 v . Coe , 40 Wn.2d. . 767 , 246 P.2.d 489 ( 1952) . By either the 6 criteria for a justiciable controversy or the exception for 7 questions of great overriding public moment , this litigation 8 presents a controversy sufficient for determination by the 9 State Court under the civil rules which allow a liberal 10 amendment of pleadings. Superior Court Civil Rule 15. B. THE DOCTRINEABSTENTIONAPPL IES: E OF LIES: 12 1 . The Plaintiffs ' Complaint Fails to Satisfy the Jurisdictional 13 Requirements of a viable 1983 Action.. 14 Younger v . Harris controls cases wherein the State 15 governmental action is criminal . Huffman v. Pursue, Ltd . 16 controls cases wherein the ' state governmental action is 17 civil. Because the State action here is a civil action , 18 ' Huffman v. Pursue, Ltd. is controlling. The only difference 19 between the relief to be accorded where Younger v. Harris 20 controls (criminal cases) and the rule to be applied where 21 Huffman v. Pursue Ltd. controls (civil cases) is the manner 22. in which the Federal Court administers the case . Because in 23. 24 the Younger type situation , the Plaintiff's Section 1983 claim for damages cannot be litigated in the criminal action , 25 26 the Section 1983 federal action can survive. In the Huffman 27 v . Pursue Ltd. situation , since all of Plaintiff' s claims can 28' be ' litigated in the civil action , the federal Section 1983 29 action must be dismissed. There is no jurisdiction for the Federal Court to proceed further. Judice v. Vale , supra; 30 31 Moore v. Sims , supra. It is significant that Plaintiffs 32 devote only six lines (page 9, lines 15-20) to a discussion DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT WARREN & KELLOGG. P.S. ATTORNEY.AT LAW OF DEFENDANTS' MOTION TO DISMISS 'OO SO.SECOND ST..P.O.. e OX.: PAGE 7 RENTON. WA.NtNOTON 98057 155.ee78 ' I 1 of Huffman v . Pursue , Ltd . , which the City deems to be 2 controlling. 3 The Illinois District Court opinion in the case of Kit 4 Dal Cinema , Inc . v . Village of Downers Grove , cited by 5 Plaintiffs does not adequately treat Huffman v. Pursue , Ltd . 6 In fact, the court itself does not even cite the case. 7 ` Huffman is a complete answer to the Court ' s opinion at pages 8 3 to 5. Apparently the City did not cite Huffman and what it 9 stood for in civil cases . The Court ' s analysis is incorrect 10 in saying that merely because the Plaintiff brought his 11 Federal Court action first he should have the right to avoid 12 dismissal to litigate in the State Court. The City submits 13 that if Huffman had been argued to the Court, the Court would 14 have been required at least to discuss it and to hold 15 contrary to the Huffman doctrine.. It may be that the facts 16 of that case were such as would indicate that it would come 17 under the first prong of the Allen v. McCrory and Parratt v . 18 Taylor test if the ordinance was unconstitutional on its face . 19 and in every particular . But the opinion failed to cite 20 Huffman which is controlling and does not draw the 21 distinction that the City draws here. 22 Responding to Plaintiffs ' claim that "this Court has 23 jurisdiction of the parties and the subject matter" 24 (Plaintiff's Memorandum in Opposition , at page 2, line 5) the 25 Defendants admit only that this Court has jurisdiction to 26 determine its own jurisdiction. . See Defendants Points and 27 Authorities at Point 1 , page 11 . 28 Huffman v . Pursue , Ltd precludes the granting of 29 injunctive or declaratory relief in Section 1983 actions 30 unless the Plaintiff' s complaint discloses on its face not 31 only irreparable injury, which is a known prerequisite for. an 32 injunction , but also that the injury would be great and WARREN & KELLOGG. P.S. DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT ATTORNEYS AT LAW OF DEFENDANTS' MOTION 'TO DISMISS Ioo SO.SECOND ST..P.O.Dox Sae RENTON. WASHINGTON 98O87 PAGE $ 255-8678 • • 1 immediate , or that the governmental action complaint was in 2 bad faith with an intention to harrass , or " . . . flagrantly or 1 3 potentially violative of express constitutional provisions in 4 every clause, sentence, paragraph and in whatever name and 5 against whomever it might be made to apply. " Huffman v. 6 Pursue, Ltd , supra , at 601-602. The court elaborated upon 7 the Huffman doctrine in the cases of Judice v. Vale, 430 U.S. 1 8 327, 51 L.Ed.2. 376 , 97 Supreme Ct. 1211 ( 1977) , Trainor v. 9 Hernandez, 431 U.S. 434 , 52 L. Ed.. 2. 486, 97 Supreme Ct 1911 10 ( 1977) and Moore v. Sims , 442 U. S. 415 , 60 L. Ed . 2. 994 , 99 -! 11 Supreme Ct. 2371 ( 1979) , to show that "abstension" under 12 Huffman is. really "dismissal" for failure to state a cause of 13 action under Section 1983 . 14 ' It now seems to be clear under Allen v., McCrory , 449 15 U.S. 90, 66 L.Ed. 2d. 308, 317, 101 . S.Ct . 411 ( 1980) , and 16 Parratt v. Taylor , U.S. , 68 L.Ed . 2d . 420 , 434 , 101 ' 17 S. Ct. 1908 ( 1981 ) , that one of the primary requirements for 18 pleading a Section 1983 cause of action in a Huffman v. i . 19 Pursue type situation, is that the pleader demonstrate that 20 the facts alleged establish one of three circumstances to be 21 existent before. Federal Court jurisdiction will prevail over I 22 the Defendant 's objection : 23 • 1 . The state substantive law is facially unconstitutional; 24 2. The state procedural law was inadequate to 25 allow full litigation of a constitutional 26 claim; or 3. The state procedural law, though adequate in 27 theory is inadequate in practice. 28 The first requirement that the statute is facially 29 unconstitutional or is subject to such 'an interpretation , is. 30 a contention that this Court has already rejected . The State 31 declaratory judgment complaint allows litigation of all of 32 the Plaintiffs ' , Constitutional claims and the State DEFENDANTS.' REPLY MEMORANDUM IN SUPPORT WARREN & KELLOGG. P.S. ATTORNEY/AT LAW OF DEFENDANTS ' MOTION TO 'DISMISS +OO/o.SECOND ST..P.O.eox 620 PAGE 9 RENTON. WAIHINOTON 98057 ' 255 8878 1 procedural law is adequate in practice. Therefore , under the 2 test in Allen v. McCrory and Parratt v. Taylor the state 3 action is one in which all of the claims that Plaintiffs are 4 attempting to place before the Federal Court can be 5 litigated. 6 Plaintiffs cite the , Brockett case , which is 7 distinguishable on the basis that the 'Court in Brockett found 8 the statute to be unconstitutional on its face , therefore 9 qualifying under the Allen v. McCrory and Parratt v . Taylor 10 cases . 11 2. The Pullman doctrine is extended by Huffman. 12 13 The Pullman doctrine does apply particularly where 14 severance has been made an issue . In the typical Pullman doctrine case the Court could abstain under its own 15 discretion. But here the City is urging here something more 'I 16 than discretionary abstension: a combination of Pullman and 17 18 Huffman. Under Pullman and Huffman the Court must abstain to 19 avoid a conflict with the Eleventh Amendment, and not attempt 20, to interpret severance and the meaning of local ordinances 21 because such matters are more particularly suited for • 22 decision by the State Court. See Defendants Memorandum at 23 page . 10, beginning. at line 16 , for a discussion of the Metromedia case . The City urges the Huffman v . Pursue 24 doctrine that dismissal is mandatory unless the Court finds 25 26 that the ordinance is unconstitutional on its face and in 27 every particular . 28 C. EXHAUSTION OF ADMINISTRATIVE REMEDIES. 29 The entire argument of exhaustion of administrative 30 remedies is grounded upon the . Plaintiff ' s faulty and 31 presumptious construction of the City ' s Zoning Code to 32 construe the necessity of issuance of a . conditional use WARREN & KELLOGG. P.S. DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT ATTORNEYS AT LAW OF DEFENDANTS ' MOTION TO DISMISS IOOSO.SECOND ST..P.O.BOX 61e PAGE. 10 RENTON. WASHINGTON.98087 255-8678 • 1 permit , special permit or variance prior to commencement of 2 Plaintiff's proposed land use . The City has stated on the 3 record that such a construction is erroneous . Theaters are 4 an allowed use In the B-1 and more intensive land use zones 5 within the City of Renton except insofar as the locational 6 requirements of_ Ordinance No. 3526 apply. Plaintiff's have 7 failed to exhaust their administrative remedies by simply 8 failing to inquire of the City regarding allowable land uses 9 prior to jumping to their own conclusions. Therefore the , 10 Plaintiff' s attack upon "strawman" administrative procedures 11 which are completely fictional , and the protestation of 12 "discretionary, standardless and indefinite" processes are a 13 sham. 14 III 15 CONCLUSION 16 The Defendants ' Motion to Dismiss Complaint Pursuant to 17 FRCP Section 12(b) ( 1 ) and (6) should be granted. Plaintiff' s 18 Amended and Supplemental Complaint should be dismissed . 19 Dated: March 11 , 1982. 20 21 Respectfully submitted , 22 23 0/4:e•-e' DANIEL KELLOGG, 24 Attorney for Defend n s 25 26 5 27 28 29 30 31 32 DEFENDANTS ' REPLY MEMORANDUM IN SUPPORT WARREN & KELLOGG. P.S. LAW OF DEFENDANTS' MOTION TO DISMISS ATTORNEYS AT too to.tccoNo INT.. O. T.,P. eo:•ae PAGE 11 RENTON. WASHINGTON 28057 258.ea7e Commentary Regulating Pornography: summer,show that courts are not at all reluctant to invalidate municipal ordinances that cannot meet these criteria(Schad Recent Legal Trends v. Borough of Mount Ephraim, 49 U.S.L.W. 4597, 33 ZD 254). By Alan Weinstein* In zoning cases,the traditional attitude of courts has been to defer to local officials'assessments of the facts,but in por- nography zoning cases courts sensitive to the First Amend- ment issues at stake have adopted a far more stringent stan- Since the Supreme Court's 1976 decision in Young v. dard of review. It is common in these cases for courts to in- American Mini Theaters,Inc.,427 U.S.50(1976),28 ZD 329, sist upon a complete record of the evidence available to local governments have been permitted to single out adult municipal officials at the time they formulated the ordinance, bookstores and theaters for.special regulatory treatment.'In and some cases have shown judges to be sophisticated the wake of Young, many municipalities enacted "por- analysts of planning issues. nography zoning"ordinances based on the Detroit dispersion model. Observing this trend in 1978, the HARVARD LAW DISPERSION APPROACHES REvt Ew noted that these municipalities were interpreting The recent invalidation of Atlanta's Adult Entertainment Or- Young as approving pornography zoning as constitutional- dinance, in Purple Onion, Inc. v. Jackson, 511 F.Supp. 1207 ly acceptable"in nearly all circumstances."2 This interpreta- (N.D. Georgia 1981),34 ZD 7, illustrates both the stringen- tion seemed incorrect, however, to the REVIEW's editors: cy and sophistication of recent court reviews. Atlanta's or- "Detroit's pornography zoning was found to satisfy three dinance,modeled on the Detroit ordinance upheld in Young. established First Amendment criteria;future ordinances that was enacted in November 1976. Section 1 of the ordinance restrict the location of adult bookstores and theaters will like- set out the findings of fact and statements of purpose in ly be subject to these criteria as well."3 A number of recent language quite similar to Detroit's. The city council found lower court cases invalidating pornography zoning or- that adult businesses blight and downgrade property values dinances indicate that the REVIEW's prediction was on target. and have an overall adverse effect on citizens' health and FIRST AMENDMENT TESTS UNDER YOUNG welfare.Thus, the city council found it necessary that adult businesses"be subject to special regulations in order to insure Justice Stevens's plurality opinion in Young set out the First that such uses and the effects thereof will not contribute to Amendment criteria that the Detroit ordinance—and any the blighting of or the downgrading of the strrrotrnclin ; future ordinances—would have to satisfy. First, regulations neighborhood.''' must be motivated not by distaste for the speech itself but by The method chosen to control adult businesses was eltyl!c r • a desire to eliminate its adverse effects.Mere hostility to con- Sion: certain defined adult businesses were subject to linear stitutionally protected speech is an impermissible motive. restrictions on their location. No adult bookstort, ,ttivlt Second, even properly motivated legislation may be un- entertainment establishment, or adult theater could be constitutional if its severely restricts First Amendment rights. located within 1,000 feet of any other such use, or 500 feet Third, even a properly motivated ordinance with only a of the boundaries of any residential district or property used limited impact on free expression may be unconstitutional if for residential purposes, or 500 feet of any permanent strut • the municipality cannot demonstrate an adequate factual ture used as a church or place of religious worship. 'l'}ust basis for its conclusion that the ordinance will accomplish its restrictions, while more stringent than Detroit's, wen: objective of eliminating the adverse effect of adult businesses.'The cases that are discussed here, as well as the generally in line with the Detroit scheme, but the Atlanta ur I better-known Schad case decided by the Supreme Court last dinance also restricted all new adult businesses to threetort ing districts and sought to amortize certain existint; businesses, both significant departures from the Detroit i *Alan Weinstein is assistant professor of planning and business administra- ordinance. tion at the University of Wisconsin-Milwaukee and a practicing attorney. Much of the testimony at trial dealt with the question o! I Portions of this article were first prepared for the American Planning whether or not there were available sites for adult businesses ' Association Illinois/Wisconsin Conference,held in Chicago last September. Randall Wondergem assisted with its preparation. in the three districts to which they were thus restricted: the C-4 Central Business District and M-1 and M-2 industrial I 1. In Young, the Court upheld Detroit's "dispersion-type"zoning or- districts. In Young, Justice Stevens had suggested that por- dinance,which prohibited adult bookstores and theaters from concentrating I near each other or near bars,pool halls,and other specified uses.Specifically, nography zoning is constitutional only so long as the"market the ordinance provided that an adult theater may not be located within 1,000 for this commodity is essentially unrestrained."6 Thus, in the feet of any two other regulated uses.The"regulated uses"include—in ad- Atlanta case the court was concerned whether the additional dition to adult bookstores—adult theaters and minitheaters,bars,cabarets, locational restrictions of the ordinance were so severe that I hotels and motels,pawnshops,billiard and pool halls,public lodging houses, they would significantly reduce, and possibly eliminate secondhand stores,shoeshine parlors,and taxi dance halls.Detroit Ordinance altogether,public access to sexually oriented businesses.The 742-G(Nov.2,1972),amending Official Zoning Ordinance of the City of 1 Detroit§§32.007, 66.0000,66.0101(1962). city contended that it was not required to make sure there were sufficient available sites for these adult businesses in the 2. "Developments in the Law—Zoning,"91 HArty.L.REv.1427,1557 three zones,but it also contended that there were at least 81 (1978). 3. Id. 5. 511 F.Supp.at 1210. 4. Id. at 1557-59. 6. 427 U.S.at 62. V/iLd)/(}11-16---) ',I' 4 February 1982 Land Use Law i r Commentary sites adequate for adult entertainment establishments. The adult theater could easily be read to include downtown hotels court refused to defer to the Atlanta officials'assessment of that offered "adult movies" on cable television in guests' the facts. rooms. While not examining the 81 sites one by one,the court did The court was also strongly influenced by evidence of an carefully review all the maps, documentary evidence, improper motive in enacting the ordinance. Minutes of a photographs, and testimony regarding site availability.On meeting of the zoning review board revealed that,in addition the basis of that review, the court found that all but 10 of the to the ordinance's stated purposes, another purpose was 81 sites were wholly unacceptable as sites for adult businesses; discussed: that it would help those citizens disgusted by the of those 10 acceptable sites,no more than three or four would conduct of these businesses to"zone them out of business." be considered by a"reasonably prudent investor"as a possi- At that same meeting,an assistant city attorney indicated that ble site for an adult business.'The court's review is notable for the adult zoning ordinance was the"strongest vehicle toward its sophistication regarding land use. elimination"of adult businesses and the city was"hoping for The court first found that a few of the 81 sites were unac- complete eradication"of adult businesses.The city attorney ceptable because they violated one or more of the ordinance's also stated that the effect of the ordinance would be to reduce distance criteria.Many other sites were wholly unsuited for the number of these establishments. retail or commercial use because the lot was too small or Taken together, the evidence of an improper motive, the because its shape precluded construction of a building of the overbroad definitions, and most critically, the fact that the proper size.One site had an easement through the middle for ordinance would immediately reduce or eliminate public ac- electric transmission wires. Several sites were 20 to 30 feet cess to live, sexually oriented entertainment and would below street level,making retail or commercial uses impossi- gradually reduce the availability of erotic books and movies ble.At least one site was in a floodplain.In several instances, led the court to declare the ordinance void for violation of the site was unsuitable because of nearby noxious uses: one the First Amendment.Atlanta is appealing the district court's site was in the middle of a group of petroleum storage tanks; ruling, but, at present, the city is discussing new legislation another was contiguous to a city sewage treatment plant. that would either copy the Detroit ordinance more closely or Going further, the court found that a large number of the use the regulation of alcoholic beverages as a means of proposed sites were simply unavailable and would remain so regulating adult entertainment.8 for the foreseeable future. Some of the proposed sites were The Atlanta case is not unique.A general pattern is emerg- employee parking lots for large, permanent manufacturing ing in which courts strike down pornography zoning or- facilities. Other sites were occupied by buildings housing dinances that violate one or more of the criteria announced substantial businesses. In a number of cases, the ownership in Young. In CLR Corp. v. Henline, 520 F.Supp. 760(W.D. or use of the site made its sale to the operator of an adult Michigan 1981),34 ZD 59,a federal district court invalidated business highly unlikely: one landowner was the city of a pornography zoning ordinance from Wyoming,Michigan, 'I Atlanta; another was the Southern Railway, and the court a city of 62,000 adjacent to Grand Rapids. The ordinance, felt that it was unlikely to sell or lease any of its railroad right- although modeled on the Detroit scheme,had the effect of en- of-way for an adult business. suring that no more than two to four adult establishments At the time of trial, the court found that there were 42 or could locate in the city, with all the potential sites being I 43 sexually oriented businesses in Atlanta and 12 or 13 that located on 2,500 feet of frontage on one road near the western offered live entertainment.All of the live establishments ex- edge of the city.The court also found that the city had failed I cept one would be affected by the amortization provision and to provide any legislative history or factual background sup- ! would be permitted to relocate in only one of the three zon- porting the need for the ordinance.The city contended that ing districts. The other adult businesses presently in zones it was unnecessary for it to have a separate legislative history I other than the permitted zones would become nonconform- when the experience of Detroit and other cities regarding ing uses under the ordinance and would face a ban on enlarg- these ordinances has been so thoroughly documented. The i ing,extending, or reconstructing their businesses.Thus,nor- city also sought to apply the distance restrictions of the or- mal attrition would slowly reduce the number of adult dinance in cases where no Wyoming residents were close ; bookstores and theaters in districts other than C-4,M-1,and enough to a potential site to prohibit the location but residents M-2. On the basis of these facts, the court concluded that of Grand Rapids were—apparently the first time that distance allowing the ordinance to stand would reduce public access requirements under the Wyoming zoning ordinance had ever in Atlanta to both live,sexually oriented entertainment and been measured outside of the city's territorial limits. The I to movies,books,and paraphernalia characterized by an em- court ultimately found the ordinance void under the third j phasis on sex. standard in Young because of the complete failure of the Although the court's finding of restricted access was, by city to assert any state interest to justify the ordinance. itself,enough to invalidate the ordinance—it clearly violated Justice Stevens's second criterion—the Atlanta scheme suf- LICENSING AND SPECIAL USE APPROACHES fered from many other faults.The court found the definitions Perhaps the best example of special use and licensing pro- of adult businesses to be substantially overbroad. The or- cedures operating as prior restraints on free speech is Enter- dinance defined"adult bookstore"so loosely that,in the view tainment Concepts,Inc.v.Maciejewski,631 F.2d 497(1980), 1 of the court, the definition would include the federal court- 33 ZD 129. There, the village of Westmont, a Chicago house and numerous private dwellings.The definition of an suburb,amended its zoning ordinance to create a new special use category—adult movies, indoor theaters—and passed a ! 7. In making these findings,the court did not consider either the price of the land or whether the land was presently for sale. 8. See N.Y.State Liquor Authority v.Bellanca,69 L.Ed.2d 357(1981). Land Use Law February 1982 5 Commentary license revocation ordinance that prohibited the exhibition requirements.'The Illinois Appellate Court held that these of "obscene" motion pictures. The facts surrounding this restrictions were an impermissible prior restraint on speech. legislation are quite illuminating.The plaintiff operated the The court was very concerned with the discretion granted to only movie theater in Westmont.On September 21,1979,he the county board through the special use provision and the began advertising "Coming Soon, Adult Movies" on the "veto"that neighbors would have over most locations zoned theater marquee and scheduled the movie Beneath the Valley to allow adult businesses. of the Ultra-Vixens to open on November 9.On October 1, Business-LicensingRequirements the village passed its special use amendment, which was q nothing more than a one-line addition to the list of per- Two cases from the Seventh Circuit Court of Appeals il- mitted and special uses in the zoning ordinance. lustrate the bounds of constitutionality when adult businesses The court found numerous defects in the two village or- are subject to licensing requirements. Genusa v. City of dinances.First,the special use ordinance contained no defini- Peoria, 619 F.2d 1203 (1980), involved a Detroit-type or- tion of the term "adult movies"; thus the plaintiff did not dinance that also included licensing, inspection, and know whether he had to apply for a special use permit even employee permit requirements.The court upheld the distance if he showed only one X-rated or R-rated film.The ordinance provision in the ordinance and also found that both the re- also was found to have as its"operative distinction"the con- quirement of a license and the $100 license fee were tent of the movie shown, did not advance any legitimate reasonable adjuncts to the zoning scheme; i.e., it was a way governmental interest to support the zoning amendment,and to keep track of adult uses and assure that they complied with gave unbridled discretion to village officials to grant or deny the zoning ordinance. But the court struck down the or- a special use permit.In short, the special use ordinance could dinance's requirement that adult businesses undergo a special satisfy none of the criteria in the Stevens opinion. inspection to ascertain whether they were in compliance with The.second Westmont ordinance provided for the revoca- all provisions of the Peoria city code. tion or suspension of a movie theater's license upon a finding The problem here,in the court's view,was that only adult of obscenity by the village's movie review board and the businesses faced the special inspection requirement. To the mayor.The movie review board consisted of three Westmont court,this was an impermissible prior restraint on speech that residents who would review motion pictures publicly ex- had as its operative distinction the content of the books or hibited in the village"to determine whether or not they are movies that were sold or exhibited on the premises.The court obscene."If a majority of the board found a movie obscene, denied that the city could have any legitimate governmental they would report their finding to the mayor. The mayor interest in making a special inspection of bookstores with one j would then conduct an"adversary-type hearing"where the type of books, while bookstores with other types of books I movie exhibitor could contest the board's findings. If the would not be inspected. For similar reasons, the court also movie were found obscene after this hearing, the ordinance invalidated a portion of the ordinance that ordered the police provided for a 90-day license suspension for a first offense department to conduct a special investigation of applicants j and permanent license revocation for a second offense.The for adult business licenses and another that required court found this portion of the ordinance wholly without employees of adult businesses to obtain an employee per- merit. Noting that a municipality "is not free to adopt mit.10 whatever procedures it pleases for dealing with obscenity By contrast, Chulchian v. City of Indianapolis, 633 F.2d . . .without regard to the possible consequences for constitu- 27(1980), involved the validity of a general business licens- I tionally protected speech," the court held the licensing or- ing ordinance. Chulchian, the operator of an Indianapolis dinance insufficient in failing to provide adequate procedural theater that showed sexually explicit films,was denied his an- protections of speech and in providing the penalty of suspen- nual business license on the grounds that there had been I sion or revocation. numerous arrests on the premises for "illegal, immoral, or obscene conduct"and that neighboring residents considered Special Use Permits the theater"to create a nuisance."Chulchian charged that the County of Cook v. World Wide News Agency, 424 N.E.2d licensing ordinance,by authorizing the closing of his theater 1173 (Ill. App. 1981), 34 ZD 10, is one of the latest in a line of cases in which courts have found that special use pro- 9. A county official testified that there were approximately 40 to 45 C-3 cedures applying only to adult businesses are invalid prior zones in unincorporated Cook County.All but three of these zones were I ' restraints on freedom of expression. In World Wide News within 1,000 feet of an area zoned residential. Agency, an amendment to the Cook County zoning or- lc). Sec also Wortluun v.City of Tucson,624 P.2d 334(Ariz.App. 10811 dinance limited adult bookstores, adult theaters, and adult (licensing ordinance impinging on First Amendment rights that gives the h• minitheaters to areas zoned C-3 and made these adult censing authority broad discretion to refuse a permit is unconstitutional Ininr businesses special uses that required the issuance of a special restraint of those rights);Wendlingv.City of Duluth,495 F.Supp.1380(1).c. use permit. The ordinance also contained a distance provi- Minnesota 1980), 33 ZD 160 (imposition of $500 annual fee on adult businesses is an unlawful prior restraint,and provisions of general lit ens• sion:adult businesses could not locate within 1,000 feet of an ing requirements as applied to adult bookstores were unconstitutional for area zoned for residential use,although this prohibition could lack of necessary procedural safeguards); Doe v, City of Buffalo. •132 I be waived if the applicant obtained the approval of 60 per- N.Y.S.2d 982(1980)(unbridled authority of licensing authorities with ropes t 1 cent of the neighbors within 1,000 feet of the proposed use. to issuance of license was unconstitutional infringement of First Amendment freedom). The Supreme Court recently upheld a licensing; scheme Iran 1 The combination of the distance provision with the restric- Minot,North Dakota,that imposed a$300-per-device license lee on annt:•v tion of adult businesses to areas zoned C-3 meant that most ment"devices,"but the case had not been reported prior to puhlicat on ::r.• locations for adult businesses would have to comply with minor v.Central Ave.News,Inc.,308N.W.2d851(N.D. 19811.lot the rug 'l both the special use and the 60 percent approval ing in the court below. 6 February 1982 Land Use Law '' Ili Commentary if he permitted illegal conduct on the premises, was an im- regulation be upheld so long as it was not an irrational exer- permissible restraint on constitutionally protected speech. cise of the police power. The court disagreed,arguing that the ordinance,although The Court faced the issue again this past summer in New it covered theaters,did not regulate them on the basis of con- York State Liquor Authority v. Bellanca, 69 L.Ed.2d 357 tent;the ordinance applied to all businesses in Indianapolis. (1981). In 1977, the New York State legislature enacted Further, the ordinance required that a licensee know that his legislation banning topless dancing in bars. The legislation conduct was illegal. Although the city of Indianapolis was immediately challenged. In 1980, the New York Court acknowledged that it bore the burden to prove such illegal of Appeals ruled that the law amounted to censorship of a knowledge, the city also indicated that it would not deny a constitutionally protected means of expression and that the license because of an isolated incident and conceded that it state had failed to show a governmental interest sufficient to could not use obscenity convictions to justify the denial of justify the restriction on free expression.The Supreme Court, a license. • without hearing argument in the case, reversed the decision. The court felt that under these circumstances the discretion The Court agreed that topless dancing has a certain protected granted under the ordinance was not boundless and held the status, but, when liquor regulation is involved, the balance ordinance to be constitutional.In the view of the court, the tips in favor of the state. In the Court's view, the law was a ordinance furthered a legitimate and substantial governmen- rational exercise of the police power based on the legislature's tal interest that was unrelated to the suppression of free finding that any form of nudity coupled with alcohol in public speech.Chulchian was denied his license for reasons wholly places results in undesirable behavior and that such behavior unrelated to speech; the ordinance did nothing more than can best be prevented by prohibiting nudity in establishments hold the operator of a business responsible for conduct on the serving liquor. premises of which he had knowledge.Although Chulchian's On remand from the Supreme Court, the New York Court theater had been denied a license because it had been found of Appeals last November held that the guarantee of freedom to be a nuisance, it was not a nuisance because it exhibited of expression in the New York State constitution served to sexually explicit films.Rather, it was a nuisance because there invalidate the ban on topless dancing independently of had been a pattern of arrests for illegal activities associated the U.S. Constitution and again declared the legislation with its operation as a theater. unconstitutional. . In its first opinion in the case,Bellanca v. New York State REGULATING TOPLESS DANCING AND Liquor Authority,50 N.Y.2d 524(1980), the court of appeals MASSAGE PARLORS had not found it necessary to consider the New York State The stringency of court review of pornography zoning is at- constitution, holding that the statute was invalid under the 1 tributable to the courts'perceived need to safeguard forms U.S.Constitution.On remand, the majority based its holding j of expression protected by the First Amendment where there on two arguments:first,that there were no legislative findings is widespread distaste for the form of expression itself.When to support the state's exercise of its authority to ban topless these First Amendment concerns are either absent or are dancing;and second, that,since the New York State constitu- superseded by other constitutional concerns, the outcomes tion contains no provision similar to the Twenty-first i of court reviews are substantially different. Thus, when Amendment, the state constitution's guarantee of free expres- i courts review ordinances that govern massage parlors or sion is "undiminished" by other policy considerations and i regulate live entertainment in establishments serving liquor, thus serves to prohibit the legislature's ban on topless danc- j the analysis presented above is inappropriate. Massage ing even when the federal Constitution would not." parlors,while adult businesses,do not have First Amendment protection. Nude dancing is arguably "speech"; the act of 11. The majority opinion,however,is far from satisfying.The majori- bodily massage is definitely not.And,even though it is a pro- ty's first argument—the absence of legislative findings—hinges on interprets- tion of a"Legislative Support Memorandum"that accompanies the topless tected form of expression, nude dancing and other sexually dancing statute.In the view of the majority,this document is nothing more I oriented live entertainment may be regulated in than"the memorandum of the assemblyman who introduced the bill"and, establishments serving liquor under the broad powers granted "iajlthough his memorandum might perhaps be classified as part of the to the states by the Twenty-first Amendment (Repeal of legislative history,...there is nothing to suggest that it was adopted by the legislature or otherwise converted into legislative findings....'"But it was Prohibition), this same memorandum that was quoted with approval by the U.S.Supreme I Court in support of its view that,even if explicit legislative findings were Liquor Licensing Approaches required to uphold the ban on topless dancing,they exist in this case.Fur- The Supreme Court has long recognized that a state has ab- ther, Justice Garbrielli's dissent in Bellanca on remand notes that the ' solute power under the Twenty-first Amendment to prohibit memorandum is reprinted in the 1977 NEW YoRtK STATE LEGISLATIVE AN- NUAL,which"provides contemporaneous documentation of legislative in- totally the sale of liquor within its borders.It is equally well tent."Thus,the majority's argument regarding the lack of legislative findings established that a state has broad power under the amend- seems strained in the absence of any indication that the legislature was ment to regulate the times,places, and circumstances under unaware of its own member's memorandum. which liquor may be sold. Ten years ago, in California v. The majority's second argument—focusing on the role of the Twenty-first Amendment—is equally strained.The majority argues that because the state LaRue, 409 U.S. 109(1972), the Court upheld a state's right constitution contains no equivalent to the Twenty-first Amendment,there to prohibit nude dancing in bars under a statute prohibiting is no countervailing constitutional reason to curtail the right to free expres- acts of "gross sexuality" in establishments serving alcohol. sion. But, as Justice Jasen notes in his dissent, 'The broad sweep of the Although agreeing that nude dancing had a certain protected Twenty-first Amendment has been recognized as conferring something more ; status under the First Amendment, the Court stressed that the than the normal state authority over public health,welfare,and morals," California v.LaRue,409 U.S.109,114(1972).In short,a state constitution j added presumption in favor of the validity of state regulation need not contain an equivalent to the Twenty-first Amendment for the force that the Twenty-first Amendment confers required that the of that amendment to have an effect on judging the constitutionality of state Land Use Law February 1982 7 Commentary . Persons familiar with the cabaret business in New York GUIDELINES FOR ORDINANCE DRAFTING have argued that the case will have little impact. Taken as a whole,the most recent pornography zoning cases Establishments that have been"using sex to sell liquor"are involving restrictions on adult businesses with First Amend- likely to switch from topless dancing to"wet T-shirt contests" ment protection—such as theaters and bookstores—show a or put "pasties" on their dancers. Establishments that are • clear pattern of strong judicial concern with maintaining corn- primarily purveyors of sexually oriented entertainment,on munity access to such businesses.In determining the constitu- the other hand, have the option of becoming "juice bars." tionality of municipal adult-use ordinances, courts have They would then be safely outside the state's regulatory generally looked to Justice Stevens's opinion in Young for authority. guidance but have also considered Justice Powell's concur- ring opinion in Young and the majority and concurring opin- ZONING APPROACHES ions in the recent Schad case. The courts now appear to be Massage parlors are treated quite differently from adult guided by the following general rules. bookstores and theaters not only because their activities are First, an ordinance whose effect is to severely restrict the not protected by the First Amendment but also because there locations available to accommodate adult 'businesses— is a strong historical link between prostitution and commer- whether present or anticipated—will be struck down. Loca- cial establishments that offer body massage by members of tional restrictions on adult businesses are permissible only if the opposite sex.12 The most recent development in the regula- the"market for this commodity is essentially unrestrained." tion of massage parlors has been the use of county zoning or- Thus, at minimum,ordinances should not operate to reduce dinances to control these uses. the total number of existing adult businesses in a communi- Two recent Texas cases illustrate the trend:Stansberry v. ty or preclude the normal operations of the market in pro- Holmes, 613 F.2d 1285 (5th Cir. 1980), 32 ZD 212, and viding new businesses as demand warrants. Further, the Harper v. Lindsay, 616 F.2d 849(5th Cir.1980).Noting that presence of adult businesses in neighboring communities to massage parlors had moved outside city limits to escape which residents have "reasonable access" will not leave a regulation, the Texas legislature enacted enabling legislation community free to eliminate such businesses within its own that empowered counties to adopt regulations governing the borders. operation and location of massage parlors and similar Second, ordinances whose wording is vague, especially establishments. Harris County (suburban Houston) subse- where the definitions in the ordinance make it unclear what quently adopted regulations that restricted the location of is and what is not regulated,will be struck down.A vaguely massage parlors by requiring owners to show that their worded ordinance leaves the business operator uncertain as businesses were at least 1,500 feet from certain other uses, in- to whether or not his activities come within the ordinance's i cluding schools, dwellings, and buildings serving alcohol. prohibitions and thus functions as a prior restraint on In reviewing the subsequent challenges to the ordinance, freedom of expression. the court emphasized that its analysis of the regulations was Third, ordinances that do not develop a factual basis for guided only by the traditional standards applicable to zon- their restrictions on adult businesses or which do not relate ing regulations. So long as the ordinance was not"arbitrary their restrictions directly to recognized zoning purposes will and capricious, having no relation to the general welfare," be struck down. Pornography zoning is permitted to have a it would be upheld.The court then found these regulations limited impact on free expression only because it serves other "a rational and understandable effort to deal with a perceived legitimate governmental interests, such as the preservation I evil that affected living conditions in the area," with no of neighborhoods. To guard against regulations that are discussion of the effects on the businesses as would be re- motivated by a distaste for constitutionally protected speech quired were First Amendment rights at issue. itself, communities must demonstrate the adverse effects I associated with the places where the expression occurs and actions that regulate any aspect of the sale of alcoholic beverages.The ma- jority declined to accept this position,holding that the ban on topless danc- narrowly tailor their restrictions to further the specific ing must be justified solely on the basis of the general police power and find- governmental interests endangered by the presence of adult ing that, under the police power, the ban on topless dancing constituted businesses. an impermissible restriction on freedom of expression.However, the ma- Fourth, and last, ordinances that grant government t�f jority's finding on this issue is unsupported by the citation of any authority and seems mistaken in view of the authority that Justice Jasen cites for his ficials broad, unbridled discretionary powers to determine position that under the"more than normal"police power conferred by the whether or not an adult business will be permitted to i Twenty-first Amendment,the minimal restriction on free expression of a ban operate—such as special use permits and licensing on topless dancing must give way to the critical state interest in regulating provisions—will be struck down.The courts will permit ol- ilw sale of alcoholic beverages. However strained the majority opinion may be,it now stands as law in ficials discretionary power to close or prohibit an adult New York until the legislature chooses to act.Given the majority's holding, business only where their authority stems from an ordinance a new legislative enactment that bars topless dancing in establishments not directed solely at adult uses and where there are both • serving liquor, so long as it is accompanied by an explicit statement of strict limits on administrative discretion and procedures that legislative findings,should be upheld. safeguard First Amendment rights. 12. Most land use ordinances that regulate massage parlors,which are usually termed Adult Physical Culture Establishments in the ordinance, TRENDS define these uses partly by focusing on contact between members of the op- As a final comment, a recent article in the New York Tilttt's posite sex.This is done mainly to avoid characterizing health spas and similar establishments as massage parlors,but New York City officials report a more Magazine13 suggests that adult businesses—and, there(ore. ;l intriguing reason.Homosexual massage parlors in New York are operated so discreetly that they rarely intrude on neighborhood sensibilities enough 13. Tony Schwartz,"The TV Pornography Boom,"September 13.l9i t to become an issue. at 44. 8 February 1982 Land Use Law • Commentary the furor surrounding their regulation—may be approaching proof or persuasion and the applicant seeks to obtain a a rapid decline.The article notes the following:installations favorable ruling from the commission or board.I do not take of cable television and sales of videorecorders are increasing the term to include those preliminary steps that may precede rapidly;25 to 50 percent of all prerecorded videocassettes sold a formal administrative proceeding. are X-rated; when X-rated movies are offered as a separate Despite the lay character and informality of administrative feature on cable, the percentage of viewers regularly exceeds proceedings,lawyers perform an indispensable function for 50 percent and goes as high as 95 percent. clients just by being there. They are there to protect the legal Al Goldstein,publisher of SCREW magazine and a pioneer rights of a client.The abuse or denial of these legal rights may in the adult entertainment business, says in the article: "I'd occur at unpredictable moments and in the most unlikely hate at this moment to be the owner of a porno theater.Their situations. obsolence is inevitable. Some people say I'm a doomsayer, An administrative proceeding, even at the simplest level, but I think the technology speaks.X-rated films should never involves basic due process rights.Adequate notice and a fair have been seen in theaters anyway. It's O.K. to see a horror hearing are essential. Many states require opportunity for film in a theater,but the point of a porno film is to turn you cross-examination. Knowledge of past administrative deci- on, and a theater isn't the best place for that.The ideal con- sions and agency adherence to them is critical. Conclusions text is the home." of witnesses should be based upon well-reasoned testimony. Extraneous or irrelevant evidence should be excluded from the record. The board or commission should conclude the proceeding with written findings of fact and conclusions of Planners and the law that are based upon evidence of record. A client's representative should be able to recognize these rights and Unauthorized Practice of assert them to the fullest benefit of the client. Lawyers are uniquely qualified to identify and enforce these rights. Indeed, lawyers alone possess skills that enable the client to Law: A. Lawyers Response take full advantage of these rights. A lawyer is not simply a defensive player. He or she is By Philip J. Tierney* trained to arrange the presentation of evidence in the light most favorable to the client. The lawyer can neutralize or diminish opposition to the client's cause.A lawyer's involve- The recent commentary by Stuart Meck entitled "Some Thoughts on City Planners and the Unauthorized Practice of ment can make the differencelicy in in a close a ca and provides a valuable insurance policy not so close cases. Law" (33 LUL/ZD No. 10 at 6) contains valid criticisms of Notwithstanding the benefits of having a lawyer as a the legal community's sometimes overly protective view of representative in an administrative proceeding, they have on what constitutes the practice of law.However, the article also occasion represented their clients poorly.In such an event the contains some disturbing remarks about the lawyer's role in client has recourse through a malpractice claim or under the the administrative process.Meck contends that lawyers need strict professional disciplinary codes. An ample body of law not be exclusively entitled to represent clients before plan- protects clients from errant lawyers.This is not the case when ping commissions and zoning boards.He observes that while: the client's errant representative is a nonlawyer. lilt is true that in complex administrative proceedings legal Many states have already spoken on the issue of nonlawyer training and the knowledge of an attorney would definitely be representation in administrative proceedings and have re- necessary, . . . that is not the case here. Boards of zoning ap- jetted the practice. Last year the Maryland attorney general 1 peals are composed of lay persons with no special legal train- ruled that nonlawyers should not act in a representational ing and often no special training at all.Despite the judicial aura capacity in an administrative proceeding (Op. Atty. Gen. j conferred upon them, boards are not courts of law.This Md.80-637).Despite Meck's skepticism, these rulings are not ' is not to say that boards should not be subject to reform; in- deed,there have been many such proposals.Rather, their pro- intended to protect lawyers from competition; rather, they cedures are not difficult for a lay representative to grasp,and are intended to protect clients from those unqualified to act no license to practice law is required to comprehend them." in a representational capacity. It is important to define what we mean by administrative Legal problems come up in unexpected ways, and lawyers are trained to recognize and handle them.Anything less than proceedings. In this context, I take the term to mean those representation by counsel only shortchanges the person be- I proceedings before planning commissions or zoning boards ing represented.Lawyers carry a heavy responsibility in their where evidence is presented to meet certain legal burdens of representational capacity. It is not clear from Meck's article 'Philip J.Tierney is an attorney and chief hearing examiner for Mont- why any sensible nonlawyer would want to assume that gomery County, Maryland. burden. I I Land Use Law February 1982 9 WARREN & KELLOGG, P.S. • ATTORNEYS AT LAW LAWRENCE J. WARREN 100 SOUTH SECOND STREET TELEPHONE DANIEL KELLOGG 1206) 255-6678 POST OFFICE BOX 626 MARK E. BARBER RENTON, WASHINGTON 98057 March 4, 1982 • CITY OF RENTON Mr. James J. Clancy MAR d 1982 Attorney at Law 9055 LaTuna Canyon Road POLICY Sun Valley, California 91352 DEVF.toPMMIINT rtPPT. Re: City of Renton vs Playtime Theatres Dear Jim: I enclose a copy of the Notice of Appearance which we have received from Mr. Burns making a general appearance on behalf of Playtime Theatres , Inc. , and Kukio Bay Properties , Inc. , in our State Court action. Having instituted this action, it is my opinion that we should take no further action to advance the State Court litigation. It seems to me that in the event we are successful and obtain dismissal in the Federal Court action that we should leave it up to Mr. Forbes to press the State Court litigation. Please let me know your thoughts in this matter. Very truly yours , Daniel Kellogg DK:kh cc: Barbara Y. Shinpoch, Mayor Council Members i Dave Clemens," City Clerk • . I OF OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON r d► O v) `/ 12{ POST OFFICE BOX 626 100 2nd AVENUE BUILDING • RENTON. WASHINGTON 98055 255-8678 NIL " 'wf ^ LAWRENCE I.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY .45 Q,`p DAVID M. DEAN, ASSISTANT CITY ATTORNEY 9' Eo SEP1 - March 3, 1982 MARK E. BARBER, ASSISTANT CITY ATTORNEY • CITY OF RENTON TO: Barbara Y. Shinpoch, Mayor MAR 4 1982 Members of City Council POLICY FROM: Daniel Kellogg, Assistant City Attorney DEVELOPMENT DEPT. RE : Playtime Theatres vs City of Renton On March 1, 1982, I was contacted by Jack Burns , the attorney for Mr. Forbes , and he requested that the hearing on our Motion to Dismiss and the hearing on the Preliminary Injunction be combined on March 19 , 1982 , apparently to accommodate Mr. 'Smith's presence in Court . I declined to do so , and he informed me that he would ask the Court to order the consolidation of those hearings without my consent . I immediately called the Federal Court to advise the Magistrate's office of our position and the reasons therefor and found that Mr. Burns was already on the line. Later in the date I received a telephone message from the Magistrate's office stating that despite Mr. Burns ' request that the Court had declined to consolidate the matters for hearing. Even better news , the Magistrate had continued the hearing date on the Motion for Preliminary Injunction until after the decision is made upon the jurisdiction question. Thus , for Mr. Burns ' trouble, he now has no hearing date on his Motion for a preliminary injunction. We obviously have no way of knowing what this means from a tactical standpoint. However, as Mr. Warren pointed out , this is certainly not bad news to our side. We will keep you informed of developments. Daniel 'Kellogg DK:nd • cc: City Clerk David Clemens ' I • OF R �� AGENDA COUNCIL MEMBERS • EARL CLYMER, ti, O COUNCIL PRESIDENT CO Z. ROBERT HUGHES NANCY L.MATHEWS JOHN W.REED P2 RANDALL ROCKHILL 90 co' RENTON CITY COUNCIL RICHARD M.STREDICKE THOMAS W.TRIMM 0,9gT6D SEPS00 SPECIAL MEETING PRESIDING February 25 , 1982 • CITY CLERK BARBARA Y.SHINPOCH, DELORES A.MEAD T H R U S A Y ] : 3 O P . M . MAYOR COUNCIL CHAMBERS • • 1 . PLEDGE OF ALLEGIANCE 2, CALL TO ORDER AND ROLL CALL 3. PUBLIC HEARING: Land Use Regulations of Adult Motion Picture Theatres within the City of Renton • 4. AUDIENCE COMMENT • At this time any member of the audience may address the City Council to discuss a topic of concern. When you are recognized by the Presiding Officer, please walk to the podium and state your name and address for the record. Please limit your remarks to no more than five minutes. 5. ANY OTHER BUSINESS THAT MAY COME BEFORE THE COUNCIL 6. ADJOURNMENT • • CITY OF RENTON MAR 4 1982 • DEVELOPMENT !SEPT. II RENTON CITY COUNCIL SPECIAL MEETING February 25 , 1982 ' Municipal Building ' Thursday , 7 : 30 P . M . Council Chambers MINUTES CALL TO ORDER Mayor Pro tem Earl Clymer led the Pledge of Allegiance to the flag and called the Special Meeting of the Renton City Council to order. ROLL CALL OF EARL H. CLYMER, Council President; ROBERT J . HUGHES, RANDALL COUNCIL MEMBERS ROCKHILL, RICHARD M. STREDICKE, JOHN W. REED, NANCY L. MATHEWS. MOVED BY STREDICKE, SECOND ROCKHILL, EXCUSE ABSENT COUNCILMAN THOMAS W. TRIMM, CARRIED. CITY OFFICIALS DANIEL KELLOGG, Assistant City Attorney; DELORES A. MEAD, City IN ATTENDANCE Clerk; MICHAEL PARNESS, Administrative Assistant; LT. RAY CALDWELL, Police Department. PRESS AND TV GREG ANDERSON, Renton Record Chronicle; KIRO TV AND KSTW TV PUBLIC HEARING This being the date set and proper notices having been posted Land Use and published, Mayor Pro tem Clymer opened the Public Hearing Regulations for to consider Land Use Regulations of Adult Motion Picture Adult Motion Theatres and receive testimony from interested parties. Council Picture Theaters President Clymer called attention to the Council 's rule of limiting remarks to five minutes and matters not already com- mented upon, if possible. Clymer explained that on 4/13/81 , Council adopted -Ordinance No. 3526 defined and prohibited loca- tion of an adult motion picture theater within an area circum- scribed by a circle with radius of 1 ,000 ft. of a residential zone or use; one mile of public or private school ; 1 ,000 ft. of church or religious facility or institutions and 1 ,000 ft. of public park or P-1 zone. Clymer further noted the City and members of the Council , Mayor, City Clerk and Police Chief have been sued in US District Court by two corporations apparently owned by Roger Forbes, purchaser of Renton and Roxy Theaters 1/26/81 . The Mayor Pro tem further explained the Renton and Roxy Theaters fall within the distances set forth by Ordinance No. 3526 and are not a lawful location for an adult motion pic- ture theater; that Forbes ' suit contends the ordinance is un- constitutional and should be stricken. Clymer reported the City Council and Mayor Shinpoch have instructed the City Attorneys to defend the litigation imposed by Forbes and have authorized association with expert in First Amendment litigation involv- ing pornography by name of James J. Clancy of Los Angeles. Clymer assured City's intent to support the legislation to preserve the character of community and prevent deterioration of neigh- borhoods. Mayor Pro tem further explained that because of the litigation , members of the Council are not at liberty to make public comment; invited public testimony concerning acceptable locations within the City for adult entertainment land use. Continued Correspondence was read by City Clerk Mead. Letter from E.D. and Dorothy M. Higgs, 2040 Union NE, opposed X-rated movies in Renton. Letter from Ruthe Ridder, State Senator, 35th (11th) District, commended Cc:incil on foresight in adoption of ordinance and supported goals of Citizens for Quality Community. Letter from Calvary Evangelical Free Church by _Rose Marie Lawrence, Secretary, 11227 Renton S, supported goals of Citizens for a Quality Community. Letters supporting Ordinance No. 3526 zoning laws prohibiting adult entertainment under certain conditions: Jeffrey Winter, 13032 SE 184th Pl ; Maureen K. Drake, 16350 130th SE; Larry E. Drake, 16350 130th SE; Roy J. Misner, 15767 117th SE; Duane D. Misner, 15767 117th SE; Alma and Don Newsome, 16605 127th SE; Phyllis McGerry, 551 Windsor, P1 . NE; Renton Chamber of Commerce, Don Schumsky, President; llth District Democratic Precinct and Organization, Patricia L. Tracy, Chair; Knights of Columbus, Renton Council , Arnold C. Hernandez, G.N. Renton City Council 2/25/82 Page 2 Public Hearing - Continued Land Use Persons present: Kathy Keolker, 532 Cedar Ave. S, President Regulations of Citizens for Quality Community which was formed in response Adult Motion to citizen concern about pornographic theaters in Renton. Mrs. Picture Theaters Keolker ,expressed the group's support of the City in defense of Ordinance 3526, land use zoning for adult entertainment; noting zoning enforcement for other businesses and residences. Keolker Favoring Ordinance explained objections to pornograph. Robert Brownlow, 17702 160th Ave. SE, discussed history of rights; freedom of speech vs freedom of license or expression; right of community to defend itself against destruction of liberty by pornography. Charlotte Kegley, 1032 Redmond Ave. NE, President of Renton PTSA spoke out against pornography, noting 75% ends with children. Chuck Slothower, 517 S 17th St. , expressed concerns over X-rated movies on 3rd Ave. S, about outside detrimental influence on children and families; and proud of reaction of community to fight. Francis Smith, 1724 Jones Dr. SE, questioned rights to bring pornography and called for rights of hi.s and other families and spoke against pollution of young. Marilee Hoffman, Highlands Elementary School PTA President and Boy Scout leader, 845 Index Court NE, explained negative aspects of pornography and detri - mental affect upon children and called for rights of citizens. Brad Allen, Senior from Kentridge High School , 17801 142nd NE, spoke out against pornography and the portrayal of theater owner as a good businessman. Kathy Keorker, President of Citizens for a Quality Community (CQC) , presented petitions to the Council Petitions Filed bearing signatures representing 11 ,447 citizens in support of 11 ,447 Signatures Ordinance 3526 land use regulations for adult motion picture Support .of City theaters and opposed to pornographic movie theaters at the Ordinance #3526 Renton and Roxy Theaters on Third Ave. , and believing in the Regulating Adult right and responsibility of the City to regulate land use con- Motion Theaters cerning this matter. Larry Vickers , 13439 141st St. , llth District Republican Chairman, supported ordinance. Sandy Webb, 430 Mill Ave. S, stated pornographic theater owner lines his pockets with money from human weaknesses catering to the deprived, depraved and curious and supported ordinance regulating location. Don Jacobson, 2919 NE 5th Pl . , Renton School Board Member, noted support of ordinance at original Planning and Development Com- mittee meeting, objecting to close proximity of theaters to the Renton High School . Craig Brewer, MD, 315 Morris S, surveyed , patients and reported 90% of older children and adults opposed the location of pornographic theaters on S 3rd St. and noted had additional petitions; also feared empty buildings downtown Don Holm, Attorney, 1015 Tacoma NEE, Office 1002 S 3rd, opposed x-rated theaters on S 3rd (objecting to unhuman/degrading quality) noting clients must pass those theaters to reach his office due to one-way street system. Mel Prue, 15222 SE Maple Valley Hwy, foresaw trouble from pornographic theater attendees. John Quinn, 88 Lincoln St. , noted jewlery business on 3rd affected. Lew Yahoudy, 1018 Pierce Ct. NE, told of incident that happened while carrying sign at theater. Nadine Rood, 12696 SE 169th St. , reported sexual assault prisoners object to .the pornographic theaters as have contributed to their crimes. Mike Paxton, 17045 125th SE, explained the universal concept of sowing seed, noting seed of pornography sows corruption. Joe Riedi , 13635 SE 135th, noted heavy imprinting by pornography on the mind which causes trouble at home and in marriages, causing need of counseling. 'LeAnne Johnson, 1739 NE 6th St. , children's program leader, objected to pornographic theaters in downtown Renton. Rev. Wayne C. Anderson, Lake Boren Christian Center, 1801 Union Ave. NE, noting self indulgence may destroy rights of others that x-rated movie theaters do not have the right to lure and degrade our community causing problems in families and commended citizens for fight. Victor Proulx, 1519 Jefferson NE, does not want pornographic theaters downtown and supports ordinance which leaves area for theaters. William Heiser, 921 Monroe NE, St. Anthony Catholic Church and members support ordinance. Farley Kessler, Empire Estates , opposes pornographic theaters in down- town; represents First Baptist Church and members; also objected to reference to "adult" when referring to pornographic. Renton City Council 2(25/82 Page 3 Public Hearing - Continued Land Use Persons present in favor of adult theaters: Dick Adams, 205 Regulations SW Langston, felt others were using excuse of harm to children, Adjult Motion noting Forbes' rights. John Cramer, 15028 133rd SE, noted very Picture Theaters few attended Walt Disney films prior to Christmas; also that liquor store within close proximity to schools , etc. , and no one objects. Mark Henry, 19817 144th SE, noted need for freedom of people to choose for themselves and called for perspective. MOVED BY STREDICKE, SECOND REED, CLOSE THE PUBLIC HEARING. CARRIED. Upon inquiry, Asst. City Attorney Kellogg explained purpose of hearing to accept public comment on land use regula- tion, noting there may be need in the future to make modifica- tions or further refinements of land use regulations' the City adopted for regulation of these uses. Kellogg explained City 's front against Mr. Forbes, noting intent to move to State Court as opposed to suit filed in U.S. District Court; that motion will be heard within few weeks; decision expected by 4/1/82. There being no further business to come before the Council , it was MOVED BY STREDICKE, SECOND ROCKHILL, COUNCIL MEETING ADJOURNMENT ADJOURN. MOTION CARRIED. Time: 9: 15 p.m. Delores A. Mead, C.(M.C. City Clerk DEPQS1T1ON SUBPOENA TO TES'- OR PRODUCE DOCUMENTS OR THING: (Revised 11-23)D.C.Form No.9 • FOR THE WESTERN DISTRICT OF WASHINGTON CIVIL ACTION FILE No. C82-59M PLAYTIME THEATRES , INC. , a Washington corporation et al. , Plaintiffs , THE CITY OF RENTON, et at, , Defendants . TO David R. Clemens , YOU ARE COMMANDED to appear at 10604 N.E. 38th Place, Suite 105 in the city of Kirkland on the 3rd day March , 19 82, at 1 : 30 o'clock p• M. to testify on behalf of plaintiffs 1 at the taking of a deposition in the above entitled action pending in the United States District Court for the Western District of Washington and bring with you ' SEE ATTACHED I t 1 Dated _F_abriiar.?Z19_82. _.._ . �_. 0 • 6-1,1A."4 A orney for Plaintiffs Clerk. 1-06-04--NE-3-8th--P1 ;-.#10-5 • By 41.6_,ert.,2...4... , Addreas Kirkland, WA 98033 Deputy Clerk. Any subpoenaed organization not a party to this suit is hereby admonished pursuant to Rule 30 (b) (6), Federal Rules of Civil Procedure, to file a designation with the court specifying one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and shall set forth, for each person designated, the matters on which he will testify or produce documents or things. The persons so designated shall testify as to matters known or reasonably available to the organization. 1. Strike the woidc "and bring with you" unless the subpoena is to require the production of documents or tangible things, in which ease the documents and things should be designated in the blank space provided for that purpose. If testimony by an organization representative or designee is requested, describe with reasonable particularity the matters on which examination is requested, RETURN ON SERVICE Received this subpoena at on and on at served it on the within named by delivering a copy to h and tendering to h the fee for one day's attendance and the mileage allowed by law.' Dated: - - , 19---.- Service Fees By _-_ _. Travel - - $ Services Total -_- $ Subscribed and sworn to before me, a this day of 19 2. Fees and mileage need not be tendered to the witness upon service of a subpoena issued in behalf of the United States or an officer or agency thereof,or upon service of a subpoena issued on behalf of a party,authorized to proceed in forma pauperis,where the payment thereof is to be made by the United States marshal,as authorized in section 1825 of title 28,U.S.C. GPO 897•s3e Note.—Affidavit required only If service Is made by a person other than a United States Marshal or his deputy. 1. Summary of findings and conclusions relative to the zoning regulation of adult theatres in Renton considered and reviewed by you prior to the adoption of Ordinance No. 3526. 2 . All other material regarding the regulation of adult businesses reviewed or considered by you prior to the adoption '' of Ordinance No. 3526. 3. Any other material used in your review of the locational problems associated with adult businesses and used by you in advising the City Council, Planning Staff or Planning Development Committee of the City of Renton. 4 . The comprehensive report from the City Attorneys identified in your affidavit relating to the proper scope f 1 use regulations and experience from other cities . am.- pile 5 . Any and all detailed maps , drawings or photographs prepared by you which show those portions of the City of Renton which are not subject to the locational restrictions of Ordinance No. 3526 . UNITED STATES DISTRICT COURT 2 WESTERN DISTRICT OF WASHINGTON 3 AT SEATTLE 4 5 ) ,_. 't._iLtD IN TFI-E • UNITED STATES DISTRICT COURY ) WESTERN DISTRICT.OF WASHINQTCX 6 PLAYTIME THEATRES, INC. , a ) 7 Washington corporation, and - ) FEB Qi982 KUKIO BAY PROPERTIES, INC. , 8 a. Washington corporation, ) BpAig RIFKIN, Cleric ) By.. „. ..».. .. - Deputy I • 9 Plaintiffs, ) ) • 10 vs. ) Case No. C82-59M ) 11 THE CITY OF RENTON, et al. , ) • ) 12 .Defendants. . ) 13 ) • 14 15 Testimony of David R. Clemens on January 29, 1982, 16 before the Honorable Philip K. Sweigart, United States 17 Magistrate. • 18 19 20 i 21 • 22 SUSAN PALMERTON • Court Reporter 23 24 _ • 25 • C� C Cr APPEARANCES: 2 For the Plaintiffs: HUBBARD, BURNS & MEYER 3 By Jack •R. Burns Attorney at. Law 4 10604 N.E. 38th Place. Suite 105 5 Kirkland, Washington 98033 . 6 and, of Counsel Robert Eugene Smith 7 Attorney at Law 8 9 For the Defendants: . WARREN & KELLOGG,P.S. 10 By Lawrence J. Warren and Daniel Kellogg Attorneys at Law 11 100 South Second Street 12 Renton, Washington 98057 and 13 Mark Barber 14 Attorney at Law 123 Third Avenue South Suite 2200 15 Seattle, Washington 98104 16 rr 17 O 18 19 O ' A O 20 r z O 21 r e 22 0 i 0 23 . 24 . . .. 25 3 ' I 1 INDEX 2 3 WITNESS: PAGE 4 DAVID R. CLEMENS _ Direct by Mr. Smith V V 4 5 Cross by Mr. Warren 39 Redirect by Mr. Smith 50 6 Recross by Mr. Warren 55 Further Redirect by Mr. Smith 57 7 8 V 9 10 11 EXHIBITS FOR IDENTIFICATION I.D. ADM. 12 V Plaintiffs' Exhibits Nos. : " 13 1 7 38 14 2 12 38 15 • 3 19 38 16 ' 4 19 38 • 17 5 20 38 = 18 • • • 19 w . 0 20 = 21 s .. 22 • 0 .. a 0 23 . 25 • i 1 DAVID R. CLEMENS, called as a witness on behal of the Plaintiffs, having 2 been duly sworn, was examine• and testified as follows: 3 . 4 THE CLERK: Would you state your full name 5 . and spell your last name for the record, please. - 6 THE WITNESS: David R. Clemens, 7 C-L-E-M-E-N-S. . 8 9 • DIRECT EXAMINATION . 10 BY MR. SMITH: 11 a Mr. Clemens, would you tell the Court what your ` 12 present occupation is? 13 A. I'm .the policy development director for the City of 14 Renton. 15 a Would you tell us what that means, sir? . 16 A. The policy development director is responsible for 17 comprehensive planning for the City of Renton, 18 which would include land use, utilities, other aspects. 19 a What position did you hold in May of 1981? r = 20 A I was the acting planning director for the City of 21 Renton. - g -222 a Is there still a planning director presently? . . 23 A No, there is not. . 24 a Allaight. Now, you made an affidavit, did you not, 25 sir, in connection with the response to the lawsuit • CLEMENS - Direct 4 before the Court? 2 A Yes, I did. 3 4 Do you have a copy of your affidavit with you? 4 Not in my hands, no, sir. • 5 MR. SMITH: May I approach the witness, your 6 Honor? THE COURT: Yes. • 8 MR. SMITH: Thank you. 9 THE COURT: If you hand it to the Clerk, 10 the Clerk will provide it to him. • 11 (Document handed to the • witness.) • 12 • 13 4 (By Mr. Smith) Would you look through that document 14 and tell me whether or not you recognize the same? 15 Would you look through that? • 16 A Yes, I do. • 17 Now, do you see at Line 4 where you discussed the 18 possibility of how many acres are available for an 19 adult use to locate? 20 A Yes, I do. • 21 • 4, What do you say generally about that? What do you 22 talk about? How many .acres are available? 23 A The affidavit indicates that there are approximately • 24 400 acres that comply with the ordinance. - 25 Q. How many parcels of land, sir.? CLEMENS - Direct 5 1 A. Does it not, state. 2 ¢ Did you designate that on the map that' s attached a to that affidavit? 4 A Yes, I did. 5 Q. Who did the designation on that map? 6 A My office. Q. All right, sir. Now, taking the designation that 8 you have on your map, would you turn to the map that 9 you have there, please? The top item, the top 10 location for an adult use, do you know where that is 11 specifically, sir? 12 A Yes, I do. 13 4 Where is it? 14 A It's located within the Boeing Industrial Complex. 15 Q. Is there a security gate that makes it necessary to 16 go through there to -- . 17 THE COURT: Counsel, may I ask that if 18 you're going to ask him to refer a particular area, is refer to it more explicitly than the top. Two of 20 them look awful close and I'm not at all sure of r 21 which one you're talking about. So for the purpose 22 ' of the record, let's make it as clear as possible. .., 23 MR. SMITH: Your Honor, we'd like to have 24 the zoning map of Renton, Washington, indicating an 25 effective date of June, 1981, entered in evidence as CLEMENS - Direct 6 1 Plaintiffs' Exhibit 1. 2 THE COURT: Will you have it marked? 3 THE CLERK: It will be marked as 4 Plaintiffs' Exhibit No. 1. 1 5 (Plaintiffs' Exhibit No. 1 marked for identification.) I 6 I 7 ¢ (By Mr. Smith) All right, sir. Now, you have a 8 i smaller map which is attached to your affidavit; i 9 isn't that correct? i 10 A. Yes, there is. 11 4 All right. Now, sir, would you show us on the 'I 12 Exhibit 1 where the area is that you said refers to 13 as Boeing? 14 A The parcel in question would be located almost 1 15 • central on that map. 16 4 Would you just point to it? i : 17 A Yes, I will. il 18 Q. Is it fair to say the area that I'm pointing to? iI F. 19 Do you adopt that? s 20 A That's correct. 21 < MR. SMITH: Counsel? V . 22 THE COURT: Mark it or something so that 23 we know what he's referring to. 24 MR. WARREN: Your Honor, maybe for the .-- 25 ease of the Court, Mr. Clemens has a larger-size map I I CLEMENS - Direct 7 1 which he himself prepared for court today after we 2 heard that he had been subpoenaed. That would be his 3 actual work product rather than relying on that map 4 that somebody else -- �I 5 THE COURT: Is it the same type of map? 6 MR. WARREN: It is just about the same size, 7 I believe. 8 THE COURT: Why don't you let counsel see 9 it and perhaps that should be the exhibit presented 10 to the Court. 1 11 (Brief pause. ) 12 MR. SMITH: It appears to be the same and 13 I would ask the withdrawal of that which has been 14 marked as Exhibit 1 and use that, with the permission 15 - of the Court, that has been prepared by the witness. 16 THE COURT: Whether it' s admitted as 17 Plaintiffs' or Defendants' doesn't sCpm to matter. 18 Go ahead and mark it as Plaintiffs' exhibit or a 19 Defendants' exhibit. I don't care which it is. O 20 THE CLERK: This will be marked as Plaintiffs'd 0 21 Exhibit 1. 22 MR. WARREN: If it will help, your Honor, 23 I'll provide my copy. 24 a (By Mr. Smith) Mr. Clemens, you have designated on 25 this zoning map which is marked as Plaintiffs' Exhibit CLEMENS - Direct 8 • I 1, area A, and there is a green area with red ink 2 on the outside. Is the green area one of the 3 • areas that you indicated was available for location 4 of adult theatre use? 5 A That's correct. . 6 Q. Now, you indicated that you're personally familiar 7 with that area? • . 8 A Yes, I am. 9 Q. And that, I believe you testified, was the Boeing 1 10 Company? '' 11 -- A That' s Correct. •� � - 12 _ 4 Do you know what is located in that very area? 1 13 ' A The Boeing-Renton Manufacturing Complex. • 14 ¢ Is there a security gate that keeps people from 15 coming and going in there, sir? 16 A Yes. 17 s a So this area that you talked about is already being 18 used by the Boeing Company and there is a security 19 • gate that people have to pass through to get in; is 20 that correct? 21 A That's correct. . ,., 22 • i ® ¢ Now, the next area you've designated is area B? i , . 23 24 1 ¢ And area B is apace that is indicated on the corner 25 • of the map, and underneath it is written the word. d CLEMENS - Direct . 9 • 1 "disposal. " Would p you tell the Court what is 2 located at the area that's marked in green, area B? 3 There are, I believe, three uses in that general 4 area. First is the Renton Metro Sewer Treatment 5 Plant. Second is a vacant property. The third is a 6 partially-abandoned railroad right-of-way. 4 Now, how broad is the area? How many acres are 8 located on area B? s A I have no idea, sir. 10 4 How much of it is part of the disposal area? 11 A A substantial portion of it. 12 4 Three-quarters of it? 13 A Possibly. 14 Q. Or it may even be more; isn't that correct? 15 A Possibly. 16 4 Now, takingthe area that you designated as area C, 17 would you tell us what's located there? 18 A There are no uses at that site at this time. is 4 Ever heard of Roll Office & Shopping Center Develop 20 A Yes, I have. r or 21 4 Do you know they are developing that whole area the 22 A Yes, I do. _ 23 4 well, then, there is a use that's being put to that 24 isn't there? Aren't there signs up that say, "For 25 Sale" and "For Rent" and construction laid out in CLEMENS - Direct 10 area? 2 A Not to the best of my knowledge, not at that location. 3 Q. When was the last time that you looked at that 4 location, sir? 5 A It's been several weeks. 6 Q. Where is it that Roll is located in that area, if3ou 7 know? 8 A The applications currently pending before the City of 9 Renton are north of that site. 10 ¢ North of that site? Do you know how much the acreag- 11 is on that one site there? 12 A Not precisely, no, I don't. 13 ¢ Is there a flood plain located in that area? 14 A In that general vicinity, yes, there is. • 15 ¢ Isn't there a requirement that someone who builds 16 there sign a waiver releasing the City of any 17 liability? 18 A That is correct. 19 ¢ So that at any time, it could flood and any existi 20 building there would have to bear the responsibili . Y 21 or the owner would have to bear the responsibility 22 for the damage, the City could not be called upon; 23 is that correct? 24 MR. WARREN: I'm going to object. That 25 asks for legal conclusion from the planning direct CLEMENS - Direct 11 ' 1 that I don't think he 's competent to make. 2 THE COURT: Overruled. 3 THE WITNESS: There is a requirement for a 4 waiver to be signed for any use, regardless of the 5 type of use. 6 4 (By Mr. Smith) There was at one time a moritorium, 7 was there not, until probably the last nine months 8 on new building in that area? 9 MR. WARREN: I object, your Honor. It's 10 irrelevant. If there was a moritoriup at one time, 11 it doesn't bear on the case now. 12 THE COURT: Overruled. 13 (By Mr. Smith) If you know, sir? 14 I believe that there was a moritorium. I'm not 15 certain that that Pe Y ro rt in particular was affected. P 16 4 Do you know when the flood plain plan was adopted by 17 the City? • 18 A I believe that it was adopted in the spring of 1981. 19 MA. SMITH: I'd like to have this marked 20 as Exhibit 2, please, Plaintiffs' Exhibit 2. This is 21 the ordinance for the adoption of the flood plain 22 and the waiver form._ f 23 THE CLERK: It will be marked as Exhibit 2. 24 (Plaintiffs' Exhibit No. 2 25 was marked for identification.)! li ji CLEMENS - Direct 12 I . 1 THE COURT: It's already in the record, isn 't 2 it? Is this the ordinance itself? 3 MR. SMITH: Yes. I'm showing the date, 4 your Honor. The hearing was October of '81. It 5 does conflict with spring. I'm just trying to have 6 all the facts in there. This is the flood plain r ordinance. 8 THE COURT: Excuse me. 9 MR. SMITH: And the waiver form, your Honor, 10 that has to be signed. 11 (Document handed to the 12 witness. ) 3 MR. WARREN: Your Honor, I don't wish to 14 keep objecting, only I don't understand where we're 15 going with this. Because the Court said that he would I i 16 be permitted to have ,.live testimony of Mr. Clemens 17 with respect to his affidavit. His affidavit doesn't s 18 mention flood plains. It doesn't mention the uses - i _ 4 19 to which individual parcels would be put.r. !I 20 THE COURT: His . affidavit says there are '! 21 400 acres available for the use that would be II 22 permitted by this ordinance, that would permit an ii 23 I adult theatre to operate. i 24 MR. WARREN: That's correct. - I 25 1 THE COURT: All right. I think that this i CLEMENS - Direct 13 i I r 1 - examination and this testimony is relevant to that 2 conclusion. 3 MR. WARREN: Thank you, your Honor. 4 THE WITNESS: I'm familiar with this 5 document. 6 ¢ (By Mr. Smith) Would you indicate -- you said earlier 7 you thought it was the spring of '81? 8 A There are two sets of regulations which would apply. ' s And I believe correctly the City's flood hazard 10 regulations were adopted in May of 1981. This is a ii separate-_requirement of the City that was adopted at 12 a later date. 13 4 And that is the requirement for the signing of the, 14 the execution of the waiver? 15 A Yes. According to Section 2, that's correct. 16 a Would that apply to the area covered by that which 17 s you designed here as area C? 18 A Yes, it would. $ 19 a Now, taking area D you have designated here, would . 20 you tell us where that's located? i r o 21 A It is generally located in the vicinity of the s o 22 Longacres Racetrack, . 23 a When you say generally in the vicinity, isn't it in 24 the middle of the Longacres Racetrack? i 25 Yes. Much of it is. 1 A CLEMENS - Direct 14 ill 111 ¢ Well, how much of it is not in the contiguous 2 area of Longacres Racetrack? 3 A I believe about a third . of it would be outside of 4 the racetrack area itself. 5 a When was the last time you checked? 6 A. I reviewed the air-photograph of that area this 7 morning. 8 • ¢ All right. Is there parking around the racetrack? 9 A Yes, there is. 10 S MR. SMITH: With the Court' s permission, �� may the witness show us where the parking would 12 occur around the racetrack? 13 THE COURT: He may. 14 THE WITNESS: Your Honor, the racetrack is 15 illustrated within this drawing. There is parking 16 on the north, on the west and in areas in the south. . 17 s a (By Mr. Smith) So are you saying that the area that' s 18 marked G here is part of the racetrack parking area? s M 19 THE COURT: I thought we were talking about D. 20 He marked it as D. r . 21 MR. SMITH: Your Honor, I'm talking about 1 . 22 where it has G printed on the map. Y 23 THE COURT: Well, let's not confuse the 24 record, Counsel. He's made a mark that is his mark 1'i 25 and marked that, I believe, as -- did you mark it as CLEMENS - Direct 15 xea D? 2 THE WITNESS: That's correct. 3 THE COURT: Let's talk about it as area D. 4 Otherwise, nobody's going to understand what's going 5 on. 6 (By Mr. Smith) Now, in the area south of the racetrack 7 or at least below the racetrack, there is seemingly 8 • an open area. Isn't that in fact p parking for the s racetrack? 10 A . It is utilized as parking at some times. 11 ' For the racetrack? 12 A Yes. 13 Q. . is it owned by the racetrack people? 14 jl A I do not know for sure. 15 4 ¢ You didn't check that before you came in? 116 ;1 A No, sir, I did not. 17 Q Is any of that developed other than for parking for 18 !1 the racetrack? 19 A Ao, not to the best of my knowledge. �. 20 4 Now, taking the area that you have°designated as 21 area E, could you tell the Court what's located in g 22 . the area marked area E? I 23 IIA There are two industrial uses or groups of ' 24 industrialises, one located generally in this 25 vicinity and one located west of the railroad tracks CLEMENS - Direct 16 it 1 which were illustrated here. 2 Q. All right. And one of them is the Benearoya 3 Industrial Park; is that correct? 4 A That's correct. 5 a And how much of that area that's reflected here, 6 do you know how many acres this would be, the area E? 7 A ,No, sir. Not precisely. I could guess that it's 8 probably in excess of 100 acres. 9 a Now, is there a drainage ditch in there that is 10 designated as a possible nature 11 comprehensivetrill on your `� "planning? . Ii 12 A. The comprehensive plan identifies the Springbrook 13 Creek as a green belt. ;I 14 a Would you point that out, please, where that would 15 be? I 16 A Approximately in this area. . II 17 a Now, you're indicating an area that cuts across and ;I 18 bisects the bottom right-hand side. Now, under your s 19 ordinance, as you understand it to be., wouldn't the j " ,II 20 green belt area be considered a park? . . i : 21 A It is not currently existing.. y 22 g No. But' it is designated that's where you're ,I 23 putting it; is that not correct, sir? 24 A. At the present time, the City has no plans for 25 development of that area for. park purposes. . . CLEMENS - Direct 17 • 1 4 All right. Is that flood plain area, also? 2 A. It' s all within the disclaimer area. 3 ¢ So that means that someone would have to sign and 4 agree that they •would not sueihe City, so to speak, 5 for damages as a result of the flood plain? 6 A That's correct. . • 7 Q. NOW, is there a school immediately outside of the 8 limits which would be within one mile of that area? 9 A. There is a school which is currently vacant and 10 boarded up within that vicinity, that is correct. 11 ¢ -And that school is located where? . 12 A. ' Approximately at this location. . 13 4 Where would one mile from there be in terms of this 14 • area? • 15 A Would cover the majority of that area. 1 • 16 ¢ Cover the majority of that area? . And the flood 'I :' 17 plain.would. cover , the entire area, would it not? 18 A, Yes, it does. . i • 19 4 But yet there are two areas that are business parks I . e 20 being developed; is that correct? I 21 A They are existing. I I ` I 22 4 Yes. And are they, in the flood plain? V I i ' 23 - A. • Yes,, they are. • • 24 • 4 They preexisted the flood plain .ordinance? 25 A. That. is correct. I . i i CLEMENS - Direct 18 i 1 MR. SMITH: Excuse me, your Honor. 2 (Brief pause. ) 3 MR. SMITH: Your Honor, I would like to 4 mark for identification the Renton Urban Area 5Comprehensive Plan, revised as of January, 1980, 6 which would .,show the green belt area running through that part of the map which indicates area E. 8 THE COURT: Would you have it marked? 9 THE CLERK: It is marked as Plaintiffs' 10 Exhibit No. 3. 11 - (Plaintiffs' Exhibit No. 3 marked for identification.) 12 13 MR. SMITH: And I have, your Honor, i 14 asked as the next exhibit to be marked is the area I 1 15 service by the notice of disclaimer for flood i 16 damage, which encompasses the area marked, ? 17 designated D -and the area that's designated E and 0 18 the area designated C. i 19 THE CLERK: It is marked as Plaintiffs' zo ;I . Exhibit No. 4. - 21 (Plaintiffs' Exhibit No. 4 I y 22 marked for identification.) ;i O 23 THE COURT: • I don't believe that you've ... 24 moved the admission of any of these yet. I 25 I MR. SMITH: No, sir, I haven't. i1 1 • I, CLEMENS - Direct 19 ; 1 I • 1 THE COURT: Gentlemen? • 2 (Document shown to counsel. ) 3 MR.„ SMITHS: I'd like to have this marked 4 as the next exhibit, please. 5 ' THE CLERK: Exhibit No. 5, it is marked. 6 (Plaintiffs' Exhibit No. 5 marked for identification.) 7 • 8 Q, (By Mr. Smith) Mr. Clemens, can you. see this map? 9 A. Yes, I can. 10 4 Do you see the area where the racetrack is located? •11 A. Yes, I ' do. . 12 4 Does this refresh your recollection about where the 13 parking facilities are paved? , 14 A. Yes. 15 4 What area near the racetrack would be usable in the ' I 16 area D for an adult theatre? i i e 17 A. If you will note from my affidavit, I state that 18 there are areas where the regulations do not apply. 19 That is the only statement that I made. • w i 20 4 Well, what areas are there that the regulations do i r . 21 not apply? . 22 A. ' The areas in green. . 23 ' _Q, Is . there any area in area D that .,is not encompassed '! 24 , by the parking lot where adult use could- be placed? 25 A. The unpaved parking area that's south Of the line of I • . 1 t I III CLEMENS - Direct 20 II 1 trees, which you can see on this photograph. 2 Q. Are you talking about the area over here? 3 A. No, sir. South of the line of trees. 4 a Talking about right along here? 5 A It might be easier -- 6 Q. If you would put a mark on there, please, sir? 7 THE COURT: First of all, I'm not sure 8 anybody's really identified that and indicated what . 9 it is and what it depicts and whether they area 10 familiar with it. • 11 MR. SMITH: I will. 12 Q. Mr. Clemens, do you recognize the topography of the i 13 areas that's presented by this map? 14 A. Yes, I do. • 1 15 4 Have you ever seen a map like this before? . i 16 A. Similar to that. r 17 ¢ And you're familiar with the terrain and what = o 18 exists in• and around the community of Renton . 19 sufficientl to acquaint yourself with this being � . . 20 an accurate depiction thereof? a . 21 A Yes., - 1 - 22 Q. And the area that you have designated is south of 23 the track as an area where adult theatre use could 24 be placed; is that correct? 25 A It is an area where the adult theatre limitation 'I CLEMENS - Direct 21 • • 1 regulations would not apply. , • 2 ¢ would not apply? Now, is there a railroad track 3 . abutting that particular area? 4 A Yes. To the west. 5 Q. When you say to the west, isn't that south of the 6 area you've designated? , ' 7 A No. ' You're holding the photograph 90 degrees off is 8 the problem. 9 Q. Is this more correct? • 10 A. No. It's upside down now. • . . a 11 ¢ Now, the area that you designated as the place where 12 an adult use theatre could be located is right there; 13. is that correct? 14 . • A. No, sir. 15 Q. Talking about down here? ' i 16 ' A.' That's correct. 's 17 ¢ . Where is the railroad track located? . 18 A To the west. • I s 19 4 Where is there a road leading into here, a paved i - . 20 . road? Y i Y 21 . A. Both on the west underneath the railroad tracks and • s . 22 from the north off of `8outhwest 16th Street. 23 ¢ • Now, the area that is indicated for the ultimate 24 green belt is located where,-sir? .. . i 25 A. The area designated as a green belt would follow the : . �: I' I CLEMENS - Direct 22 i I • Springbrook Creek in its current alignment or at 2 such time as the ultimate drainage facilities of the 3 valley are constructed. The green belt would follow 4 wherever those facilities went. 5 So that with the master plan of' the green belt set 6 forth in your comprehensive master plan, then, - this would in essence be a park at the time that 8 finally occurred; is that not correct? 9 No, sir. I have no knowledge that that would be the 10 case. The City of Renton does not own the right-of- 11 way at the present time, has no plans to construct 12 any park or recreational facilities. 13 a Now, in the area that's been designated as area E 14 on your map, are there railroad tracks through 15 there? 16 A. Yes, sir, there are. ' 17 ¢ ' Do they have access crossing the railroad tracks at ' 18 that particular area? 19 A . . There are a number of railroad tracks, some of them 20 are crossed and others are not'. r 21 ¢ Down at the bottom in the area where I'm pointing 22 appears to be railroad tracks; is that correct? 23 A. . That is correct. 24 ¢ How many different tracks would you say are along 25 there? CLEMENS - Direct 23 1 A. That' s not in the City of .Renton. 2 1 Q. That's not in the City of Renton? 3 A. N4 sir, it' s not. 4 1 Q. So immediately above that, the railroad tracks are 1 5 in the City of Renton? s A. No, sir, they are not. 7 ¢ None of those are in the City of Renton? 8 A Not till you get to Southwest 43rd, and you d.d not 9 point to that area. 10 4 I understand. Is there an access across these 11 railroad tracks into the backway of this area that 1 1 12 . you've designated as E? 13 A. . If you're speaking about area E, it's not the area 14 that you were pointing to on the aerial photograph. 15 ¢ Area D; is that correct? 16 A Pardon me? 17 's ¢ Is that area D? • 18 A No, sir, it's not. 1 a . 19 I ¢ All right. I 20 I May I have a moment, your Honor? 0 21 (Brief pause. ). 22 e Q. (By Mr. Smith). Sir; on this "map, in this area that 23 I'm pointing to, which area .is that on the map 1 24 over here that we have? 25 • A It would be just to the east of area E. CLEMENS - Direct 24 I ¢ Would it be inclusive of area E, any part of it? 2 The very fringe. 3 Aren't there two cul de sacs that very recently 4 have been placed in there? • s A. That is correct. 6 ¢ And railroad track spurs that have gone across there? A. Yes, there are. 8 And that's in area E? 9 A. That's correct. 1U THE COURT: Is it or isn't it in area E? 11 It is in area E what he's just pointed to? I 12 thought I heardlou say that it was outside area E. 13 It is part of area E? 14 THE WITNESS: The area which you just 15 pointed to is within area E and there were cul de sacs. 16 ¢ (By Mr. Smith) New cul de sacs placed? 17 A. That's correct. 18 ¢ And railroad track spurs; is that correct? 19 A That is correct. ' 20 Q. Do you, ,sir, know whether any minutes were kept of r 21 any meetings by theCity :of Renton governmental Z2 officials on the so-called adverse effects of an 23 adult.entertainment land :use? 24 : . . • :. ... I A. By minutes, do you mean notes that were made by 1 25 either our office or the City Attorney' s Office or CLEMENS - Direct 25 . • 1 are you speaking of formal minutes? L liil 2 " ¢ Public record by the Secretary of the Council, the !' H 3 City Council or such? . 4 A. Not, to the best of my knowledge. 5 ¢ You've said several times in your. affidavit, you've 1: 6 used the term "adverse effect of adult theatre uses." 4 1 7 What is it you meant by the adverse effect of adult 8 theatre use that the City considered? I 9 A The effects that were discussed by the people that 10 spoke were generally -construed, , the comment was 11 consistent throughout most of. the testimony that 12 there was 'a grave concern about the effects of. this 1 13 • type of activity upon persons or individuals in the 14 . general vicinity of those uses. 15 ¢ What were the adverse effects that were discussed? 16 A I cannot state it any different than I have just j e 17 - stated it, sir. 18 ¢ Well, was there a differentiation between .adverse 1 - e 19 effects of adult theatre uses and adverse effects s 20 of adult bookstore uses? 21 A I believe that the majority of the speakers spoke to - 0 22 both issues in�,essentially the same light. . . 23 ¢ What- :evidence., if any,, was taken ,from any planners 24 or real estate people as to how the adult theatre 25 use would affect the economic health-of the City? t i i • CLEMENS - Direct 26 - it,t,,:orvil- ' Ivio4/4!14/4 (311;1 ***11 : ' '' ' ' . .• A The ire department reviewed documents from the City jl 2 .j of Seattle which had recently passed a legislation 3 dealing with -this type of activity and the committee 4 1 1 -- of`-theCouncil was made aware of the discussions 5 that were presented in 'the .City of Seattle. 6 q . Was •there any testimony by any professional as to the 7 economic adverse effects of the adult theatre use. in g the City of •Renton? ' • . 9 i A Yes, sir. By the Chamber of Commerce President. ,I • ' 10 4 Whose name was that? i 11 A Kay Johnson. i 12 4 And Kay Johnson is what kind of professional? ,.. i 13 A I don't know what his professional background is. • 14 He is the manager of .the City -- of the Greater • 15 Renton Chamber of Commerce. : . - , 16 ¢ Is he a real' estate broker? • 17 . - N A I do not know, sir. • 18 Q. :Was there any analysis of land values, property 19 a • values? � - • •20 r A None that was done by our office. • 21 ¢ Well, .what by your office other than getting what - g 22 . ' • s ,Seattle 'may 'have. done, what evidence did you 23 ' gather and present.�on the question of the adverse use' effect on the economic health of the citizens? 25 , A The statement of the citizens of the City of Renton ' CLEMENS - Direct 27 i i , 1 as a part of the public meeting on this subject. !' . 2 Q. And that' s the extent of it? I 3 A. Yes, sir. i 4 a Now,. how about the adverse effect on the business 5 welfare of the citizens? What professional 6 testimony did you present or gather to support that 7 conclusion? 8 A. One of the statements of the citizens who spoke at • 9 the public meeting. I 10 4 Who were opposed to an adult theatre; is that correct? j 11 A I can't speak to that specifically. . I 12 Q. You were there, weren't you? i 13 A. Yes, I was. 1 14 4 Did they talk about adult theatre uses? 15 A Yes, they did. 16 4 They talked about the use of the theatre because of 17 the content of the material; isn't that true? . se 18 A I'm not sure that I can speak specifically to that. a C 19 4 Well, was it somebody from the school, some one . a 20 of the principals of the school that came in and 21 talked about children having to be, exposed to adult . 22 theatres if they walked within .a mile of the school? 23 A Yes. The superintendent of the schools spoke to that 24 - .. issue. 0 25 Q. Now,. was he talking about the content of the material i' CLEMENS - Direct 28 , 1 offered by the theatres? r 2 A. I don't know what was in his mind when he was making 3 his statement. 4 ¢ All right. Now, how about the vitality? What evidence 5 did you present and gather to the City Council as to I 6 protecting the vitality of the City of Renton from 7 the adverse effects of adult theatre uses? 8 A. The testimony of the citizens of Renton at the public 9 meeting. . 0 10 ¢ Any professional testimony of any experts? 1 11 A None that I recall. 1 12 4 All right.. Now, what is. it that you meant by the 1 1 13 word "vitality"? 1 14 A. Economic health, . I believe. 15 ¢ But you talked about economic health and you talked li 16 about vitality and welfare as though they are a 17 separate categories. Are you saying now they are 18 but one category? a 19 A. : . If you could refresh my memory as to where that's 1 io 20 located? I Y 21 ¢ On Page 6, sir, Line 27. . s 22 A I believe all three times vitality, economic health 1 . 23 and business welfare all 'speak .t9 the same general il 24 issue of economic acceptability. . 25 Q. So the justification is the economic health of the I, i CLEMENS - Direct 29 City of Renton? 2 MR. WARREN: Objection, , your Honor. 3 Whose justification for what are we talking about? a Is he asking him to speculate as to what the City 5 Council did? 6 MR. SMITH: The justification set forth in 7 his affidavit. 8 THE COURT: In his. affidavit. He's asking 9 him what he means by the words he used. I think io that's certainly proper. 11 THE WITNESS: The two issues that I recall 12 that the Council was concerned about was the 13 economic health of the businesses within the City of ;I 14 Renton and concerns about the protection of residential r 15 neighborhoods of the City of Renton from potential 16 adverse effects of adult entertainment. 17 4 (By Mr. Smith) What are the potential adverse 18 effects of adult entertainment that you presented and "s 19 had considered at the meeting? 20 A The discussion -- if I might? 21 ¢ 'Yes, sir. . . 22 (Brief pause.) S 'I 23 A The .te$timony_ presented to the committee,, as noted on 24 Page 3, beginning about-Line 27, testimony presented 25 to the committee consistently noted adverse impact CLEMENS - Direct 30 1 upon neighborhoods and businesses within the City I 2 of Renton from those types -- types of activities 3 that would include adult theatres. 4 4 As of that day -- that was in March of 1981, correct? 1 5 °A That is correct. 6 4 Was there an adult theatre in the City of Renton? I A Not to the best of my knowledge, sir. r 8 Q. Then what evidence did you present from professionals 9 as to what the adverse impact was on neighborhoods 10 and businesses from adult theatre use? I 11 A Other than our analysis of other jurisdictions' I 12 findings and conclusions, there was none. 13 4 Now, you analyzed Seattle; is that correct? 14 A That's correct. 15 4 How many months of hearings did they have in Seattle, 16 if you know? 17 's A I don't know, but it was extensive. 18 Q. Did you review all of that or have your staff review S 19 all of that? 20 A We reviewed the major conclusions and hot the detailed r = 21 background. + j 22 4 So you reviewed the conclusions, but you did not . : 23 - review the factual basis on which the conclusions _. 24 were based; is that what you're saying? I 25 A I'm not sure that I fully understand the question. II CLEMENS - Direct 31 , 1 1 4Well, you said you didn't review the whole thing, II 2 you reviewed the conclusions, correct? I' 1 3 A. That is correct. 4 4 By that do you mean the summary of what they found 1 5 to be and their recommendations? 6 A That is correct. 7 Q. Did you read the facts upon which they based their B summary? r 9 A Not every fact, no, sir. 10 ¢ Did you read any of the facts or did you just read ii the conclusions? 12 A We read the summary of their findings and 13 conclusions. 14 4 The summary of their findings and conclusions? 15 A That's correct. 16 Q, Did you go back to the original source documents to F. 17 see what the adverse impact, if any, would be? p 0 18 A No, sir, we did not. e 19 a Then how were you able to give that information to e 20 the City Council of Renton of what the factual w 21 basis was? 3 22 A. We could only give them what we reviewed, and that 23 was a summary of the findings of the City of 24 Seattle and their conclusions. i 25 4 What other geographic area besides Seattle? You II: i; , CLEMENS - Direct 32 said there were other jurisdictions whose studies 2 that you reviewed. What other ones? 3 A We reviewed the Court's findings in the case of 4 Young versus the City of Detroit. I believe that's 5 the case. 6 Q. What other findingsg did you review from other 7 geographical areas? 8 A No findings. 9 ¢ None? 1 o A. None. 11 ¢ Now, you indicated on Page 3 at Lines 8 through 10, 12.. you ralked about the fact that, "The Council 13 consider comments from the land use planning 14 professionals in my office . . . " do you see that 15 part there, sir? 16 Yes. 17 4 What comments were made -- I mean, what land use 18 planning professionals in your office made comments? ;I 19 A Myself. 20 So when youphrased this, you're you mean you re the one r i 21 that made the comments? 22 A That's correct. 23 a And you looked at the summary of the conclusions 24 in the CIty of Seattle and Young versus American 25 Mini Theaters; is that correct? • CLEMENS - Direct 33 A Correct. 2 a And so you were the land use planning professional 3 that made the comment to the Council? 4 A. That's correct. 5 ¢ Anybody else who was a professional make a comment 6 on that aspect of land use planning? 7 A None that were land use professionals. 8 ¢ All right. So as the land use planning professional 9 who reviewed the summary of the City of Seattle, 10 what are the adverse impacts that you identified and presented to the City Council in your position 12 as acting planning director? 13 A. The areas of concern that were drawn from the City 14 of Seattle was the potential for adverse effects 15 upon the moral character of young people within the 16 area, that there was the potential for secondary 17 impact of other related both potential criminal 18 activity and activities of that type, and the 19 potential adverse impact on property values in the 20 immediate vicinity of those types of uses. 21 4 The City of Seattle has a Skid Road area, does it 22 not? 23 A Yes. I believe that's -- S 24 Q. And the adult use zoning area is primarily within 25 that Skid Road district, is it not? CLEMENS - Direct 34 • 1 A It is now. 2 4 Yes. I'm saying it is now, correct? 3 A • Correct. • 4 Q. And the bars and other Skid Road appurtenances are 5 already there, are they not? 6 A Yes, sir. If I might? . 7 4 Yes. • 8 A The discussion related to eliminating adult - 9 • entertainment uses from areas outside of that area 10 and the potential spinoff effects that would be • ' 11 similar to the Skid Road impacts if those uses were 12 allowed to remain outside of that area. 13 4 All right. Now, what are the collateral criminal 14 activities that you indicate could occur by having 15 an adult theatre? 16 A Prostitution. 17 4 What else? s 18 A Potentially assault, activities of that type. 0 19 4 Prostitution could be punished as a crime, can it not? s 20 A Yes, it can. • Y -. • . 21. • ' Q. Can assault be punished as a. crime? • 22 A Yes, it can. � . .. . . . . . 23 4 • Were there any other facts other than protecting, I 24 think you said, the moral fiber of young people? 25 Is that what you said? I CLEMENS - Direct 35 1 A. Yes. 2 ¢ And the deprecation in- real property values? 3 A. Yes. . 4 Q, And you have no independent factual evidence, do you, 5 sir? 6 A. No, sir. 7 ¢ Of what that impact would be, do you? 8 A No, sir. 9 4 Was there not an equal concern on your part as the 10 City Planning Director commenting to the City 11 Council that adult bookstores, peepshow operations 12 could have. that same impact? 13 A. I believe the regulations speak only to motion r 14 picture theatres and those, I believe, by definition F 15 in the Code would include a peepshow-type of 16 activity. Does not include adult bookstores. j 17 .4 Is there any difference as you perceived it from your 18 review of the summary of conclusions between the -- s 19 strike that. Did you not study and would you look e w e 20 at Page 5, Line 27 and 28 of your affidavit? 21 Did you not have a study of the location of adult li s 22 entertainment land uses as a whole? e • 23 A Yes: All were discussed. 24 4 What was the reason, if you know, in your 25 recommendations that nothing was done about adult 1, CLEMENS - Direct 36 1 bookstores and adult theatres were singled out? 2 A. I do not recall at this time why it was segregated 3 to just that one activity. 4 Is the zoning predicated on the content of the 5 material being offered? 6 A. I would presume that that is correct, based upon the 7 definition. 8 MR. SMITH: Thank you, no further questions. 9 Your Honor, if I may at this time, I would 10 move into evidence all of the exhibits which have 11 previously been identified and marked as Plaintiffs' 12 Exhibits 1 through 5 inclusive. 13 MR. WARREN: I have no objection, your 14 Honor, except I don't think 4 and 5 have been 15 identified. 16 THE COURT: I don't believe the photo- 17 graph has been identified certainly. Which one is 18 that? 19 THE CLERK: 4. 20 MR. SMITH: I think that was identified, 21 your Honor. 22 THE COURT:- Is that 4 or 5? -: 23 THE CLERK: It's 5. 24 MR. WARREN: I understood that to be 3, 1 25 your Honor. CLEMENS - Direct 37 • • ' I THE COURT: Let' s review what they are. 2 This is 1. That will be admitted. 1 is going to be 3 admitted. What was 2? 4 MR. WARREN: 2 was the ordinance on the 5 flood plain, I believe. 6 THE COURT: Any objection to 2? 7 MR. WARREN: No. 8 THE COURT: 2 will be admitted. 3 is the 9 comprehensive plan. 1U MR. WARREN: I don't think that was 11 identified, but we have no objection to the 12 . document. . 13 THE COURT: It was. 3 will be admitted. 14 4 is? 15 MR. SMITH: The flood plain, your Honor. 16 THE COURT: Yes. That was 'identified by 17 the witness. Do you have any objection? 18 MR. WARREN: Okay. 19. THE COURT: 4 will be admitted. 5 is the 20 photograph. Do you have an objection to that? r z q 21 MR. WARREN: No, your Honor. 22 THE COURT; 5 will be admitted. 23 . (Plaintiffs' Exhibits 1 through 5, inclusive, 24 were admitted. ) . 25 MR. SMITH: Thank you, your Honor. CLEMENS - Direct 38 CROSS-EXAMINATION • ' 2 BY MR. WARREN: . • • • 3 a Mr. Clemens, could you focus in, please, on the flood ' 4 plain ordinance and the exhibit dealing with the 5 area to be 'covered by the flood plain moritorium? 6 Initially, does the ordinance in any fashion bar ' development within the flood plain sea? 8 A No, sir, it does not. ' 9 Q. Can you relate to the Court the background that led 10 up to the adoption by the City Council of that 11 flood plain disclaimer ordinance and the area? ;I 12 A The Federal Emergency Management Administration is • 13 charged with the requirement by Federal statute to • 14 ' develop flood plain areas for flood insurance 15 purposes. Their study was completed in the spring I 16 • of 1981, I believe, or it could have been late fall 17 of 1980. I'm.not precisely sure of the date. a 18 Approximately midsummer of 1981, the City was made 19 - : aware of the potential for some very erroneous 20 conclusions that that study drew. After a 21 discussion with .the Federal Emergency- Management • 22 c Agency and their consultants, it was concluded that 23 the findings of the initial study were incorrect and 24 that the potential for flood hard within the 25 entire valley area was -- the possibility was there . CLEMENS - Cross 39 i 'I • for substantially greater flood hazard than had been 2 identified in the original documentation. 3 To date, has the City or the Federal government 4 developed exact figures as to where the flood hazard 5 line should be located? • 6 A . No, sir. Those are still under preparation by 7 consultants for the FEMA people.. 8 0 Now, if I could,. Mr. Clemens, pointing to the large:. 9 • map, which I think will be easier to refer to, } 10 . . is it not true that the general area of the flood • 11 plain covers all of this area? 12 A That's correct. 13 a Okay. And are there existing commercial 14 developments in that area? 15 A Yes, there are. • • 16 Q. Are there many? 17 A Both at the north and south, there are extensive 18 commercial developments. ° 19 a . Could you describe to the. Court the type of develop- s 20 ment that's in the Benaroya area? W 21 A There are industrial buildings covering approximately 22 ' three million square feet of gross floor area. • 23 West of the Benaroya development along the West 24 . Valley Road, which would be the. western perimeter of 25 the area marked in black on Exhibit No. 1, are • CLEMENS - Cross 40 1 various types of industrial uses. , Going north, 2 . as already has been spoken to, is the Longacres 3 Horseracing Track, and its accessory uses, which 4 . includes restaurants and other types of activities. • 5 Along both the northside and southside of Interstate 6 • 405, which extends east and west between areas B and 7 C and the area D, which would be below it, are a 8 variety of industrial and commercial activities 9 ranging in size from :relatively small to up to 10 200,000 square feet of gross floor area. . . 11 .Q4 Mr. Clemens, to the best of your knowledge, 'are the 12 areas that are developed presently occupied by the 13 owners or tenants thereon?. i 14 A Yes, sir. Most of them are. There may be some . • P 15 vacancies, but .the majority are occupied.. , • 16 a • Do you know whether the Benaroya complex is fully • 17 rented? • 11 18 A I don't know specifically. But I would believe 19 , that it's fully occupied. . 20 . .4. . Now, Mr. Clemens, is there anything in the 21 • . ordinance, this particular ordinance that's being s Z2 : challenged, or' any City ordinances that would ban an 23 adult entertainment theatre from occupancy in the i - -- ,• 24 • - . Benaroya Park? .. . � I 25 A None that I'm aware of, sir. I I • • CLEMENS - Cross 41 ,r. • • 1 ¢ How about in any of the other developments that are 2 included in the green areas on your map? Is there 3 anything that you know of in our- ordinances that 4 would banthe use or occupancy of one of those . - 5 areas? ' . , 6 A No, sir. I'm not aware of. any. • 7 4 Mr. Clemens, this notice of disclaimer that has . 8 . been admitted, the map, is the intent, to the best of 9 your knowledge, that this be a permanent document? 10 • A No, sir, it is not. The intent of that document • 11 is to act as an interim regulation until such time 12 . as the revised FEMA analysis of the flood hazard 13 has been .developed, at which time the disclaimer 14 would no longer be applicable and the City's flood 15 hazard regulations established in the early part of . 16 1981 would apply. I 17 a Now, focusing in again on the discussion that was j' :I 18er in area -- • 19 THE COURT: May I ask a question? • 20 MR. WARREN: Excuse me, yes. I 21 THE COURT: Mr. Clemens, the .flood plain s • 22 area that you were talking about that's been : 23 identified, does that include both D and ,E? 24 • THE WITNESS: Yes, sir, it does. • I 25 • THE COURT: Does it include Band C, also? . I CLEMENS - Cross • 42 1 Does it go that far? 2 THE WITNESS: It does include C. 3 I believe area B is not included because it is 4 higher than the surrounding areas. 5 THE COURT: But the other areas would all 6 be included in that? 7 • THE WITNESS: With the exception of A. 8 THE COURT: With the exception of A, yes. j 9 All right., 'I 1I 10 a (By Mr. Warren) Mr. Clemens, is it possible for 1:! 11 someone to come into the City, one of those areas ;h 12 that's included and fill the property? 1 13 A Yes, it is. I 14 4 And possibly take it outside of the floodway fringe? I, I 15 A. Yes, sir, it is. 16 a Directing your attention to the area that's been 17 marked area E, and there was some discussion M 18 previously about cul de sac roads in this area. 19 e ' Are these or recent origin? . w 20 A. Yes, sir, they are. . y 21 4 Why were the de sac roads put in here, to the I,I . 22 best of your knowledge? I 23 A. To provide for further development of that area 24 for various kinds of industrial and commercial uses. j 25 a So those are access roads, then, to the site; is that 1 CLEMENS - Cross 43 1 1 right? • . 2 A That is correct. 3 Q. How about the railroad spurs .that are in this 4 location? Are they of recent. origin? 5 A , - Yes,. sir, they are. . 6 Q, Are they capable of being crossed? 7 A At the present time, some of them cannot. There are 8 platted streets which extend beyond all of those 9 railroad spurs, which when the roads are completed 10 would be available to access across the railroad 11. ' tracks. I' 12 4 If someone desired to develop a property, they could , 13 then bring a road to the grade of the railroad 14 • spurs? • t15 A. That is correct. 16 . THE COURT: A followup on my question with - 17 respect. to the areas included in the flood plain, 18 • I 0▪. • the areas that are not marked in green on the map, sj 19 areas C, D and. E. There are substantial areas just 20 outside of those that are also included in the flood tl . 21 plain? s 22 •• THE WITNESS: Yes,* sir. • . - 23 I THE COURT: That are developed with the -. 24 ..- commercial and industrial uses?* 25 THEVETNESS: Can I illustrate that, your I . I, CLEMENS - Cross 44 1 Honor? . 2 THE COURT: Yes. 3 THE WITNESS: Speaking to Exhibit No. 5, 4 . if I might place this in close proximity. This is 5 the Interstate 405 Freeway and that is located at 6 this location on the other map. This is the Valley 7 Freeway and, again,' that's located here on this map. 8 So you have some feel for the general location. 9 ' 1! '' The Longacres Racetrack is here. , It' sits here 10 approximately on this photograph. The areas at the • 11 II south end of our City limits -- I 12 . THE COURT.: Well, I can see. What is that? I. 13 [1; That's the big interchange up there and that's the 14 • areas that's on the map there. Ii 15 THE WITNESS: Right, that's correct. � 16 • l'' l If you will refresh me with the question again? i' 17 L' THE COURT: I was curious to know of Ij� 18 areas within that .same floodplain, butside of the 19 ill . "a areas that we've talked about,' specifically that would III 20 . permit the use that we're talking about here that are I,' .. 21 I . presently .commercially and/or industrially developed. 22 I. THE WITNESS: That are 'developed and within 23 �I . the flood plain? - • . 24 • THE COURT: Yes. _ 25 . • THE WITNESS: And within -- 1 CLEMENS - Cross 45 ' I 1 THE COURT: No. Not within the area that 2 we're talking about. Mostof that, I think, we've 3 talked about that already. But I'm just interested 4 • in knowing of the development that is presently 5 there that's there in spite of the fact that it's 6• in a flood plain. • . 7 • THE WITNESS: Okay. ,The largest. of course, 8 - is the Benaroya Complex here at the extreme south. - 1 9 THE COURT: Well, now, that was within our 1'I • 10 area, is it not? • • 11 •� THE WITNESS: That's correct. Adjacent to ;'i 1 . 12 that is the •Koll Business Park located in the vicinity. 1 . 13 • THE COURT: But that's in our vicinity, is I; 14 it not? • 15 THE WITNESS: It's not within -- portions 1 16 of it may fall within it. I 17 THE COURT: It's partially in and partially I' a lI18 out is what you're saying? 1 . 19 THE WITNESS: Right. There are warehouses II . 20 in this general area, as you can see from the L F 21 1 photographs.. A tank farm, mini storage..warehouses, t . i 22 large office industrial complexes and several O • I 23 additional warehouses and industrial complexes. I 24 , THE COURT: Generally on -that photograph, 25 indicate for me the flood plain areas. I • i • I • . CLEMENS - Cross 46 1 II. 1 THE WITNESS: The flood plain area extends 2 from the Green River on the west, which you can see 3 quite distinctly outlined, and actually the bottom • 4 of the hill which is east of the freeway, but generally 5 speaking from the freeway to the river and northerly 6 actually off of this photograph. • 7 THE COURT: Goes even substantially farther? 8 THE WITNESS: That's correct. As it relate8 s to this map, would extend from here all the way I . 1 1 10 to those railroad tracks. This photograph cuts off ' 11 • at approximately this location. 12 • THE COURT: All right, thank you. 13 . Q. (By Mr. Warren) If I could follow up on that, Mr. . 14 Clemens. Are there any plans for development to the 15 north of the Interstate 405 in that floodway area? 16 A. Yes, sir, there are. - 's i 17 Q. And what types? .. ' , � � - .• 18 A. A variety 'of office and industrial uses. ws, 19 Q. Are they small developments or large in scope? 0 _'. 20 •� A. The Roll Development, which was spoken to earlier, 21 . the. entire development is quite large if you • o - O 22 consider in excess of a hundred acres'totaldevelop- . 23 went as being large. � • . - - , • 24 ' 4 And the other uses that are planned to the' north 25 •� there in the flood area? - , I CLEMENS - Cross 4? . • • 1 A At the north, there are a variety of relatively 2 smaller uses that might be two to five acres, 3 possibly as .much as ten acres•.in size that are 4 • under consideration. .5 Q. . Now, you previously mentioned the Metro Sewer Waste o System Facility. Is this in the floodway area here? • 7 A The treatment plant itself is outside of the flood- 8 way area. There is a berm around the facility to - 9 protect it from flooding so that it will continue to , io • operate even .in a flood. it 11 THE COURT: That's area C, is it? iI . I . 12 THE WITNESS: B, your Honor. • 13 MR. WARREN: That's all the questions I • 14 have, your Honor. • 15 • ' MR. SMITH: Very briefly, your Honor, if . 16 I may? � • - . I • 17 THE COURT: I have a few more myself. I1 • 18. . . MR. SMITH: I'm sorry. i• ' 19 . THE COURT: With respect to area. B, it is 's ;= 20 . my understanding that approximately three-quarters of ,Y 21 that. area is presently taken up with the sewage 22 � treatment plant? - � • • 23 .THE WITNESS: That is correct. ' • 24 • THE COURT: An approximation. I • 25 THE WITNESS: Approximation. I CLEMENS - Cross 48 . 1 THE COURT: One-quarter of it is presently 2 vacant- property developable; is that correct? 3 THE WITNESS: Yes, that's correct. 4 THE COURT: I thought there was mention of 5 a third use in that area. 6 THE WITNESS: There's existing railroad -- 7 partially abandoned and partially existing railroad 8 spurs in that vicinity. 9 THE COURT: All right. A itself, is that 10 all Boeing property? 11 THE WITNESS: To the best of my knowledge, 12 it's all within their complex. - . 13 THE COURT: As a practical matter, not I j 14 developable? 15 THE WITNESS: For an alternate use at this 16 time, it would be difficult, I would think. mj 17 THE COURT: Approximately one-third of D 18 would be outside the racetrack property itself; is 19 that correct? s 20 THE WITNESS: The property may be in the 21 ownership of the racetrack, but it's an area which is y - 22 only used on the rarest of occasions for overflow - I: 23 parking. 1 24 THE COURT: The entire area, the entirety of 25 area D is either used as part of the racetrack I CLEMENS - Cross 49 I 1 facility itself or alternately, for overflow parking? 2 THE WITNESS: It has been used for over- 3 flow parking. • 4 THE COURT: Is the entirety of that area 5 in one ownership? 6 THE WITNESS: I can't tell you for sure. 7 THE COURT: All right. Thank you. 8 MR. SMITH: May I? 9 II I 10 REDIRECT EXAMINATION it , 11 BY MR. SMITH: l I i i 12 Q. Sir, you indicated the flood plain and you pointed 13 generally to the left-hand bottom corner of the map. . 14 Isn't there a substantial amount of marshland in ' 15 one of these areas that's owned by the City? I 16 A. No, sir. It's outside of all of the areas that are 1 : ' 17 shown in green. PO 11 18 Q. The judge before asked you about were there areas II • : 19 within the flood plain other than those marked and I, II 20 identified in green. You indicated there were such r s 21 areas; is that correct? • o s 22 A Yes, that's correct. _ 23 4 As part of that area that's outside the green is 24 marshland that is owned by the City; is that correct? 25 A That's correct. S CLEMENS - Cross/Redirect 50 11 . 1 Q. Now, you were asked by counsel about in the flood 2 plain if someone could build up or fill in land, 3 put up a building; is that correct? 4 A That's correct. . 5 . ¢ What would they do with regard to roads? Would roads 6 also have to be built up? t 7 A :-Yes, sir. 8 ¢ Who would bear the responsibility financially of . 9 building up the roads? • 10 A The proposed developer would be responsible for 11 access to his site. ' 12 • Q. Is that if. Playtime Theatres wants to put an adult - 13 theatre in the flood plain, they would have to r 14 build up the site and then arrange to pay for the I'I 11 15 cost of the road going in; is that correct? I• 16 A Unless the roadway was already there. • i' 17 a All right.. • II 18 A It would be -- - jl i 19 ¢ •. If it were there, would it not have to be built up li "s ii 20 under- the new ordinance? w 21 A. ' If it' s an existing roadway, there would be no 22 additional requirement. - it 23 Al You indicated that when the cul de sacs were completed, • . .. . t. • • 24 that an adult theatre use could. be. put in there; 25 is that correct? 1 1 CLEMENS - Redirect 51 • �! 1II r . 1 A. That's correct. 2 4 When is it going to be completed? 3 A. Burlington Northern. Railroad Company owns the 4 largest share', particularly of area E. They are 5 currently under bond to the City of Renton to complete 6 those roadways within the time limits of our ordinance, which would be within the next one to two 8 years, I believe. s g So the Burlington Northern owns the greater part of 10 the property in that designated. area E? 11 11 A. In area E. I d r II 12 Q. All right. And what is that to be used for un e 13 the comprehensive plan? �I 14 A. The comprehensive plan indicates the area as t5 potentially -- if I might, your Honor? 16 I would like to be precise. Exhibit 4, I believe. s 17 e MR. SMITH: I have an extra copy. 18 THE COURT: The Clerk will provide him with it 19 . Exhibit 4. . o 20 (Document handed to witness.) r 21 • ' ••THE WITNESS: ' I'm sorry. Exhibit '.3, the f 0 22 colored map. 23 ' witness.) , 24 ' - THE WITNESS: Thank you. The area is 25 designated on the comprehensive plan as being i !. CLEMENS - Redirect 52. 1 potentially appropriate for manufacturing park use. 2 a (By Mr. Smith) All right. And that covers the 3 entire area, does it not, sir, of E and D; is that 4 correct? 1 1 5 A No, sir., Area D, , according to our comprehensive, 6 plan, is designated as a recreational area. j 11 7 Q. That's because it is a racetrack; is that correct? II, 1 8 A I was not present when it occurred. I would assume I' 9 that's the case. . 1 10 a As it is designated on this revised -.edition of j 11 January, 1980, does it not include for that recreation 12 area the entire parking lot that's used an overflow; II II 13 is that not correct? II; 14 A. I believe that' s the case. it 15 Q. If the entire area other than the racetrack and the 16 parking area is zoned as a manufacturing park, . • ll 17 and most of that is under contract, 1 . you say under N 18 bond with Burlington? I' 19 A Burlington Northern. i 0 20 a Is there any possibility that an adult theatre could 21 be placed there today? i ii s 22 A At: this time, yes, sir. • ; . 23 ¢ . Yes? When they are under. contract' with`.rail spurs 11 24 and. cul de sacs and everything else that's" being done 'I ;1 25 there? I1 Ii CLEMENS - Redirect 53 ; 1 A. As far as the zoning of the City of Renton is 2 concerned, an adult theatre would be allowable use 3 within the areas designated industrial park. , 4 a Sir, would you look at that and is there a 5 designation on there where you would find the waste • 6 disposal plant? 7 A Yes, sir. � 8 Q. Is there any part of area B that is not within the . 9 waste disposalplant set forth in .the comprehensive I 10 plan? • 1' 11 A Yes, sir. There are parts -- II Ii . • 12 Q: Would you show us where that is, based on this map? • i 13 A. The southerly, the very southerly-most portion of that • I1 i 14 is designated as a manufacturing park on the it 15 - II comprehensive plan: I 16 Q► Well, there's a road going through here. Have you - • 17 found that on the map that you have in front of you? • 18 f A Yes, I have. I 19 ¢ And the area that is designated as B is north of 20 that road?. • p 21 A That's correct. . I,i 22 Q. Correct? • And you identif ied� this sort of 23 indentation on your map there? � . • 24 A Yes, I do. 25 4 Now, are you talking about the heavy manufacturing I , CLEMENS - Redirect • 54 I 1' 1 . , 1 section that would appear to be at the bottom part 1 2 of area B? Is that -- 3 A. No. That's manufacturing park, sir, according to the 4 plan designation. 1 s Q. What's the black location there? • 6 A. There is no -- there' s not a black designation. 'That's a quasi public designation indicating .the 8 treatment plant itself. 9 Q. The treatment plant? So what part of this area 10 is other than in the treatment plant, based upon 11 observing the map that you have here, the 12 comprehensive plan? it 13 A. The southerly portion of that is outside of the 14 II treatment plant, and, according to this comprehensive II 15 plan,. it would be designated, as a manufacturing park. I� I� 16 ¢ And there's a railroad junction 'here, is there not? I 17 A. No, sir. It doesn't exist any longer. j . li s 18 MR. SMITH: I have no further questions, 1,11 "s 19 your Honor. I li120 • lI 21 RECROSS-EXAMINATION • e 22 BY MR. WARREN: . _ . III IN. t23 ¢ very briefly, ,.Mr. Clemens, since counsel has brought 24 into question the roads. 'Can you explain to the court 11,1 M1 25 the present roadway that exists on the south end CLEMENS - Recross 55 1 of the City limits? How many lanes of traffic does 2 that support now? 3 A Currently two. 4 • 4 Are there plans for• more? I 5 A The City is currently under contract to widen that 6 I' street to five lanes. f 4 The circulation roadwZy in the industrial area down i 8 here, can. you explain to the Court the number of 9 lanes on Lind. Avenue? I, 10 A There are four moving lanes with turning lanes at the II 11 11 street intersections. ill 12 4 How does that run throughout that industrial area? jI 13 li A North -- it runs north-south all the way from the it 14 li - south edge of the map northerly into the central '' i 15 portion of the City beyond 405. II 16 4 Are there any plans to develop any other roads in II 1 17 this area that you're familiar with? �� 18 A Yes, sir.• The City has authorized local improvement pi 19 District NO. 314, which will provide a number of it I 20 improvements to existing streets plus extend in::: II 21 •particular Southwest 27th Street, which will 'enter II ti s 22 ' the southerly end of- the Longacres Racetrack. That II 23 . . would be the southerly edge of area I . . 24 4 This area? 25 A. That's correct. I I CLEMENS - Recross 56 I • • 1 Q. Do you know the number of lanes that are planned 2 for Southwest 27th? • ' 3 A. I believe it's four moving lanes. . 4 . MR. WARREN: That's all. the questions I . 5 have. . II 6 • 7 . FURTHER REDIRECT EXAMINATION II 111 • 8 BY MR. SMITH: II , s Q. Those plans will ripen into fruition for the extension it . 10 of two to five lanes when, 'sir? II . it 11 A We're under contract now. The construction would i II 12 commence as soon as the weather is permitting. 13 ¢ How long is it expected to take .to complete? i7 il 14 " A. Just guessing -- I'm not an engineer -- but .I would i 15 assume between a year and 18 months. II 116 . 4 And the other roads that you indicated were going to . II ! 's 17 be built there, are they, under contract? ii i 18 A No, sir, they are not. • • III II s 19 4 When will they be built, if you know? : • II 20 A Again, the LID 314 improvements are expected to 21 • commence sometime this year. and would take, •again, i' ci 22 about the same period of time. ? • V .O t i . ' 23 MR. SMITH: Thank you. 24 MR. WARREN: No further questions, your 25 Honor. • • CLEMENS - Redirect 57 . II . , . , Y r • . • • 1 THE COURT: The area that is in E, despite 2 all the plans to widen roads and put in other roads 1 1 3 right now, there is an industrial park in existence . 4 there, is there not? 5 THE WITNESS:- On a portion of it, that is 11 P 6 correct. - • III THE COURT: And there are roads permitting 111 8 access to .and from that area.? II 9 - - I'I • THE WITNESS: . That is correct. 10 THE COURT: Thank you. That' s all I have. 11 11 Anything further from this .witness? 12 . MR. SMITH: No, sir. i,' 13 * * * . . '' • 14 • �:: •15 '• ;I 16 !I • 11 17 •. 18 • II II • 19 ifl 11 20 I rri C z . 21 )I s !, c' 22 rI _ ii o I 23 t. i 24 I 25 II . l ' I II CLEMENS - Redirect 58 1 CERTIFICATE 2 3 4 i, SUSAN PALMERTON, Reporter Pro Tem for the United 5 States District Court in the Western District of 6 Washington, do hereby that I was g � certify present in court 7 during the foregoing matter and reported said proceedings 8 stenographically. 9 I further certify that thereafter I have caused said 10 stenographic notes to be transcribed under my direction, 11 and that the foregoing pages are a true and accurate 12 transcription to the best of my ability. 13 Dated this day of , 1982. 14 15 16 17 I 18 19 SUSAN PALMERTON I .. 20 0 21 22 23 . _ 24 25 • I I 59 /`,. / OF R4,4 A. ,?' OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON cif' U `/ rbot ° 1_ 3. POST OFFICE BOX 626 100 2nd AVENUE BUILDING • RENTON,WASHINGTON 98055 255-8678 o . `• P. LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY 09,0 `O DAVID M. DEAN, ASSISTANT CITY ATTORNEY 04) SEP�E4��P March 3 , 1982 MARK E. BARBER, ASSISTANT CITY ATTORNEY CITY OF RENTON TO: Barbara Y. Shinpoch, Mayor Del Mead, City Clerk MAR 4 1982 Council Members David Clemens l POLICY DEVELOPMaT PEW! Ron Nelson FROM: Daniel Kellogg, Assistant City Attorney RE: Substitute House Bill #1006 This Substitute House Bill #1006 is the proposed legislation which would create a cause of action for owners of property who i have filed an application for governmental approval for use of their land in the event that the denial of that approval ' is deemed to be arbitrary, capricious , unlawful, in excess of II lawful authority, or for failure to act within time limits ;i established by law. Unintentional, procedural or ministerial errors of a public entity are excluded. The bill would give ;I the affected property owner the right to sue the municipality for damages incurred as a result of the wrongful regulation of 'I' the property by the municipality. In addition, the property owner may be entitled to recover reasonable costs , expenses and losses incurred between the time the cause of action arises and the time the owner is granted relief. i i This creates a cause of action for a person appealing from a decision of the City Council to recover damages in the event that the Superior Court ultimately decides that the City Council ! did act in an arbitrary, capricious , or unlawful manner. The 1 Court is also granted discretion to award reasonable litigation 1i expenses , including attorneys ' fees , appraisal fees , costs of !I record reproduction and transcription, and the costs of appearance ] of witnesses . '1iSubsection 6 of Section 3 of the Bill provides as follows : "This chapter does not create a cause of action when the affected property interest involves the following uses of property: Adult bookstores , adult movie theaters , body painting studios , massage parlors , bathhouses , or saunas ." As noted in my attached letter to Mr. Hempelmann, I am satisfied that the definitions of "adult bookstore" and "adult movie theaters" will not withstand constitutional scrutiny since they are so vague that a bookstore owner or operator of a theater cannot be expected to be able to determine whether his proposed land use comes within the exclusion or not. . I recently had a lengthy telephone conversation with two lobbyists from the Washington Association of Realtors who have strongly supported this Bill. I discussed with them my strong concerns of the effect that this legislation would have upon municipalities such as the City of Renton, and my conviction that the exclusions for "adult movie theaters" would be ineffective to bar Mr. Forbes from claiming damages against cities such as Redmond and Renton. I think they were genuinely concerned about the affect of their proposed legislation when we concluded the telphone conversation. However, each of you may wish to contact your own favorite legislators in Olympia to show your concern over the proposal on the two basis mentioned above: (1) Potential claims for damages against the City based upon some Judge's "hindsight" review of our land use regulations ; and (2) The ineffective exclusion of "adult" uses . Please keep in mind that persons appealing from our land use �I decisions have, at the present time, a right to have our decisions !1 overturned if they are able to prove that our decision was arbitrary, capricious , unlawful or in excess of authority. This Bill simply adds the additional hammer of the recovery of damages , attorneys ' fees , appraisal fees and other costs against the City in the event of such a finding by the Court . Daniel Kellogg DK:nd Encl. 'I II • SUBSTITUTE HOUSE BILL NO. 1006 State of Washington by Committee on Local Government (originally spon- 47th Legislature sored by Committee on Local Government and 1982 Regular Session Representatives Sanders, King, R., Barrett, Owen, Chamberlain, Scott, Leonard, Kreidler, Isaacson, Monohon, Berleen, James, Lewis and Eberle) Zza-`'.;; Read first time February 12, 1982, and passed to Committee on Rules for ='c?" second reading. • 1 adding a new chapter to Title 64 RCW. 2 BE IT ENACTED BY THE'LEGISLATURE OF THE STATE OF WASHINGTON: 3 NEW SECTION. Section 1. The legislature finds and • 4 declares that government respect for private property rights is 5 a matter of compelling public interest. The legislature also • 6 finds and declares that intelligent employment of land use 7 regulation by the state and its political subdivisions to 8 protect the environment, natural resources, and ecosystems and • 9 to insure sound land use planning is in the public interest. . 10 The legislature further finds that owners of property ; 11 interests should be able to use and enjoy their property in ; 12 accordance with regulations adopted by public entities. Acts of. 13 a public entity which are arbitrary, capricious, unlawful, or in • 14 excess of lawful authority may result in damage to the use and ;I 15 enjoyment of real property. Such act(s) may not constitute a 16 constitutional taking, but nevertheless, may interfere with the 17 use and enjoyment of real property. 18 NEW SECTION. Sec. 2. As used in this chapter, the terms 19 in this section shall have the meanings indicated unless the I, 20 context clearly requires otherwise. • 21 (1) 'Public entity' means the state •of Washington, any 22 of its political subdivisions, including any city, town, or 23 county, and any other public body exercising regulatory i 24 authority or control over the use of real property in the state.25 (2) "Permit" means any governmental approval required by 26 law before an owner. of a property interest may improve, sell, I; • 27 transfer, or otherwise put property to use. 28 (3) 'Property interest' means any interest or right in 'I -1- SHB 1006 • RECENT-3 FEO 2. 5 1982• • Sec. 2 1 real property in the state. 2 (4) 'Litigation expenses" means all reasonable expenses • 3 and costs incurred in pursuing remedies under this chapter, • 4 including filing fees, attorney's fees, appraisal fees, costs of 5 record reproduction and transcription, and the costs of the 8 appearance of witnesses. 7 (5) 'Interim damages' means reasonable costs, expenses, 8 and losses incurred between the time a cause of action arises 9 under section 3 of this act and the time the owner is granted 10 relief as provided in section 4 of this act. Interim damages vM: 11 must be caused by an act, necessarily incurred, and actually • 12 suffered, realized, or expended, but. are not based upon 13 diminution in value of or damage to real property, or litigation 14 expenses. 15 (6) 'Regulation' means any ordinance, resolution, or 16 other rule or regulation adopted pursuant to the authority 17 provided by state law, which imposes or alters restrictions, 18 limitations, or conditions on the use of property. • 19 (7) 'Act' means a final decision by a public entity 20 which places requirements, limitations, or conditions upon the 'O +. 21 use of land in excess of those allowed by applicable regulations • 22 in effect on the date an application for a permit is filed. 23 'Act' also means a public entity's failure to act within time 24 limits established by law in response to a property owner's 25 application for a permit. 'Act' shall not include lawful 26 decisions of a public entity which are designed to prevent a 27 condition which would constitute a threat to the health, safety, e I I 28 welfare, or morals of residents in the area. rms I 29 NEW SECTION. Sec. 3. (1) This chapter creates a legal 30 cause of action for owners of a property interest who have filed 31 an application for a permit to obtain legal relief from acts of 32 a public entity which are arbitrary, capricious, unlawful, or it 33 exceed lawful authority or for failure to act within time limits i 34 established by law. '• 35 (2) No cause of action is created for relief from SHB 1006 -2- 1 . , n - 1 ' • Sec. 6 • I .-: 1 unintentional, procedural or ministerial errors of a public I. 2 entity. - ' i.-:_ -. 3 (3) Invalidation of any regulation in effect prior to 4 the date an application for a permit is filed with the public 5 entity shall not constitute a cause of action under this - 6 chapter. 7 (4) This chapter does not create a cause of action when ! - t 8 •the owner of a property interest agrees in writing to extensions 9 of time, or to the conditions or limitations imposed on an 10 application for a permit. 11 - (5) Any action brought under this chapter which results I 12 in an act being adjudged to be unlawful or in excess of lawful i 13 authority shall not- entitle an owner of a property interest to ' 14 interim damages unless the court also finds that the final 15 decision of the public entity was made with knowledge of its i i 16 unlawfulness or that it was in excess of lawful authority, or it j .; 17 should reasonably have been known to have been unlawful or in 1 1 18 excess of'lawful authority. .19 (6) This chapter does not create a cause of action when ("Ittl 20 the affected property interest involves the following uses of j 21 property: Adult bookstores, adult movie theaters, body painting 22 studios, massage parlors, bathhouses, or saunas. ' i • 23 NEW SECTION. Sec. 4. The owner of a property interest j 24 affected by a public entity's act who brings an action under I' 25 section 3 of this act shall be entitled to an award of interim j II 26 damages whenever the court finds that the act(s) was arbitrary, i 1 II { n 27 capricious, unlawful, or in excess of lawful authority or that I' 28 the public entity failed to act within time limits established 29 by law. 30 NEW SECTION. Sec. 5. In any action brought under this 31 chapter the court may award reasonable litigation expenses to II 32 the prevailing party. 33 NEW SECTION. Sec. 6. Any action to assert claims under - 34 the provisions of this chapter shall be commenced within thirty i t -3- SHB 1006 ( . r . I ' - , . •' . _ .. . . .... ... Sec. 6 . • ' . 1 ' \—.../ 1 days from the date upon which the act becomes final under the .-....., , • 2 applicable laws. 3 . NEW SECTION. Sec. 7. The remedies provided by this 4 chapter are in addition to any other remedies provided by law. 5 NEW SECTION. Sec. 8. If any provision of this act or ! 6 its application to any person or circumstance is held invalid. i 7 the remainder of the act or.the application of the provision to . • . 8 other persons or circumstances is not affected. • • 9 NEW SECTION. Sec. 9. Sections 1 through 7 of this act • -- ! 10 shall constitute a new chapter in Title 64 RCW. • • • • . . . . I ' I . , ' • . . • . . Lol 'I . . . . ; . . . . I i • _., . I • i I / i 1 i 1 • 1 I . . . ... . , 1 I . i. . • I • __1 1 ' I' i - • • it 1 I I . 1 11 r4 . i I/! ; r SHB 1006 -4- • li I • • . ..---7--------- I . . . .: - . . ' . . •• • • , 7 •: F • O R4,A 1.• COUNCILRL MEMBERS i� ., AGENDA COUNCIL PRESIDENT 40 ® Z ROBERT HUGHES • NANCY L.MATHEWS IC JOHN W.REEDI C) rn RANDALL ROCKHILL 0 0 °9� RENTON CITY COUNCIL RICHARD M.STREDICKE �P THOMAS W.TRIMM ,9gT�D SEP1�� j SPECIAL MEETING February 25 , 1982 'PRESIDING CITY CLERK BARBARA Y.SHINPOCH, DELORES A.MEAD MAYOR THRUS!)AY 7 : 30 P .M . - COUNCIL CHAMBERS • I , 1 . PLEDGE OF ALLEGIANCE ++� 2. CALL TO ORDER AND ROLL CALL I 3. PUBLIC HEARING: Land Use Regulations of Adult Motion Picture Theatres within the City of Renton 4. AUDIENCE COMMENT II At this time any member of the audience may address the City Council to discuss a topic of concern. When you are recognized by the Presiding Officer, please walk to the podium and state your name and address for the record. Please limit your remarks to no. more than five minutes. 5. ANY OTHER BUSINESS THAT MAY COME BEFORE THE COUNCIL 6. ADJOURNMENT • • • • I. I, CITY OF RENTON • MAR 4 18? POucy DEVELOPMENT fF.FT. • • • • li 7 it • I RENTON CITY COUNCIL SPECIAL MEETING ;I I II February 25 , 1982 Municipal Building Thursday , 7 : 30 P .M . Council Chambers MINUTES CALL TO ORDER Mayor Pro tem Earl Clymer led the/Pledge of Allegiance to the flag and called the Special Meeting of the Renton City Council to order. ROLL CALL OF EARL H. CLYMER, Council President; ROBERT J . HUGHES, RANDALL COUNCIL MEMBERS ROCKHILL, RICHARD M. STREDICKE, JOHN W. REED, NANCY L. MATHEWS. MOVED BY STREDICKE, SECOND ROCKHILL, EXCUSE ABSENT COUNCILMAN THOMAS W. TRIMM. CARRIED. CITY OFFICIALS DANIEL KELLOGG, Assistant City Attorney; DELORES A. MEAD, City IN ATTENDANCE Clerk; MICHAEL1PARNESS, Administrative Assistant; LT. RAY I' CALDWELL, Police Department. PRESS AND TV GREG ANDERSON, Renton Record Chronicle; KIRO TV AND KSTW TV II PUBLIC HEARING This being the date set and proper notices having been posted Land Use and published , Mayor Pro tem Clymer opened the Public Hearing Regulations for to consider Land Use Regulations of Adult Motion Picture Adult Motion Theatres and receive testimony from interested parties. Council Picture Theaters President Clymer called attention to the Council ' s rule of limiting remarks to five minutes and matters not already com- mented upon, if possible. Clymer explained that on 4/13/81 , Council adopted Ordinance. No. 3526 defined and prohibited loca- tion of an adult motion picture theater within an area circum- scribed by a circle with radius of 1 ,000 ft. of a residential zone or use; one mile of public or private school ; 1 ,000 ft. of church or religious facility or institutions and 1 ,000 ft. of public park or P-1 zone. Clymer further noted the City and members of the Council , Mayor, City Clerk and Police Chief have been sued in US District Court by two corporations apparently owned by Roger Forbes, purchaser -of Renton and Roxy Theaters 1W81 . The Mayor Pro tem further explained the Renton and Roxy Theaters fall within the distances set forth by Ordinance No. 3526 and are not a lawful location for an adult motion pic-, ture theater; that Forbes ' suit contends the ordinance is un- constitutional and should be stricken. Clymer reported the City I' Council and Mayor Shinpoch have instructed the City Attorneys to defend the litigation imposed by Forbes and have authorized association with expert in First Amendment litigation involv- ing I! pornography by name of James J. Clancy of Los Angeles. Clymer assured City' s intent to support the legislation to preserve the character of community and prevent deterioration of neigh- �I , borhoods. Mayor Pro tem further explained that because of the litigation , members-of the Council are not at liberty' to make public comment; invited public testimony concerning acceptable it - locations within the City for adult entertainment land use. Continued Correspondence was read by City Clerk Mead. Letter from E.D. and! Dorothy M. Higgs, 2040 Union NE, opposed X-rated movies in Renton. Letter from Ruthe Ridder, State Senator, 35th (11th) District, commended Cc:Jncil on foresight in adoption of ordinance ' and supported goals of Citizens for Quality Community. Letter from Calvary Evangelical Free Church by Rose Marie Lawrence, Secretary, 11227 Renton S, supported goals of Citizens for a Quality Community. ) Letters supporting Ordinance No. 3526 zoning: laws prohibiting adult entertainment under certain conditions: Jeffrey Winter, 13032 SE 184th Pl ; Maureen K. Drake, 16350 130th SE; Larry E. Drake, 16350 130th SE; Roy J. Misner, 15767 117th SE; Duane D. Misner, 15767 117th SE; Alma and Don Newsome;) • 16605 127th SE; Phyllis McGerry, 551 Windsor P1 . NE; Renton Chamber of Commerce, Don Schumsky, President; 11th District Democratic Precinct and Organization, Patricia L. Tracy, Chair Knights of Columbus , Renton Council , Arnold C. Hernandez, G.N. • I 1 Renton City Council 2/25/82 Page 2 Public Hearing - Continued Land Use Persons present: Kathy Keolker, 532 Cedar Ave. S, President Regulations of Citizens for Qua1,i-ty Community which was formed in response Adult Motion to citizen concern about pornographic theaters in Renton. Mrs. Picture Theaters Keolker expressed the group' s support of the City in defense of Ordinance 3526, land use zoning for adult entertainment; noting zoning enforcement for other businesses and residences. Keolker Favoring Ordinance explained objections to pornograph. Robert Brownlow, 17702 160th_ Ave. SE, discussed history of rights; freedom of speech vs freedom of license or expression; right of community to defend itself against destruction of liberty by pornography. Charlotte Kegley, 1032 Redmond Ave, NE, President of Renton PTSA spoke out against pornography, noting 75% ends with children. Chuck Slothower, 517 S 17th St. , expressed concerns over X-rated movies on 3rd Ave. S, about outside detrimental influence on children and families; and proud of reaction of community to fight. Francis Smith, 1724 Jones Dr. SE, questioned rights to bring pornography and called for rights of his and other families and spoke against pollution of young. Marilee Hoffman, Highlands Elementary School PTA President and Boy Scout leader, 845 Index Court NE, explained negative aspects of pornography and detri- mental affect upon children and called for rights of citizens. Brad Allen, Senior from Kentridge High School , 17801 142nd NE, spoke out against pornography and the portrayal of theater owner as a good businessman. Kathy Keolker, President of Citizens for a Quality Community (CQC) , presented petitions to the Council Petitions Filed bearing signatures representing 11 ,447 citizens in support of 11 ,447 Signatures Ordinance 3526 land use regulations for adult motion picture Support of City theaters and opposed to pornographic movie theaters at the Ordinance #3526 Renton and Roxy Theaters on Third Ave. , and believing in the Regulating Adult right and responsibility of the City to regulate land use con- Motion Theaters cerning this matter. Larry Vickers , 13439 141st St. , llth District Republican Chairman, supported ordinance. Sandy Webb, 430 Mill Ave. S, stated pornographic theater owner lines his pockets with money from human weaknesses catering to the deprived, depraved and curious and supported ordinance regulating location. Don Jacobson, 2919 NE 5th P1 . , Renton School Board Member, noted support of ordinance at original Planning and Development Com- ' mittee meeting, objecting to close proximity of theaters to the Renton High School . Craig Brewer, MD, 315 Morris S, surveyed patients and reported 900 of older children and adults opposed the location of pornographic theaters on S 3rd St. and noted had additional petitions; also feared empty buildings downtown Don Holm, Attorney, 1015 Tacoma NE, Office 1002 S 3rd, opposed x-rated theaters on S 3rd (objecting to unhuman/degrading quality) noting clients must pass those theaters to reach his office due to one-way street system. Mel Prue, 15222 SE Maple Valley Hwy, foresaw trouble from pornographic theater attendees. John Quinn, 88 Lincoln St. , noted jewlery business on 3rd affected. Lew Yahoudy, 1018 Pierce C,t. NE, told of incident that happened while carrying sign at theater. Nadine Rood, 12696 SE 169th St. , reported sexual assault prisoners object to the pornographic theaters as have contributed to their crimes. Mike Paxton , 17045 125th SE, explained the universal concept of sowing seed, noting seed of pornography sows corruption. Joe Riedi , 13635 SE 135th , noted heavy imprinting by pornography on the mind which causes trouble at home and in marriages, causing need of counseling. LeAnne Johnson, 1739 NE 6th St. , children's program leader, objected to pornographic theaters in downtown Renton. Rev. Wayne C. Anderson, Lake Boren Christian Center, 1801 Union Ave. NE, noting self indulgence may destroy rights of others • that x-rated movie theaters do not have the right to lure and degrade our community causing problems in families and commended citizens for fight. Victor Proulx, 1519 Jefferson NE, does not want pornographic theaters downtown and supports ordinance which leaves area for theaters. William Heiser, 921 Monroe NE, St. Anthony Catholic Church and members support ordinance. Farley Kessler, Empire Estates, opposes pornographic theaters in down- town; represents First Baptist Church and members; also objected to reference to "adult" when referring to pornographic. /// Renton City Council 2(25/82 Page 3 • Public Hearing - Continued Land Use Persons present in favor of adult theaters: Dick Adams, 205 Regulations SW Langston, felt others were using excuse of harm to children, Adjult Motion noting Forbes' rights. John Cramer, 15028 133rd SE, noted very • Picture Theaters few attended Walt Disney films prior to Christmas; also that liquor store within close proximity to schools , etc. , and no one objects. Mark Henry, 19817 144th SE, noted need for freedom of people to choose for themselves and called for perspective. MOVED BY STREDICKE, SECOND REED, CLOSE THE PUBLIC HEARING. CARRIED. Upon inquiry, Asst. City Attorney Kellogg explained II purpose of hearing to accept public comment on land use regula- tion, noting there may be need in the future to make modifica- tions or further refinements .of land use regulations the City adopted for regulation of these uses. Kellogg explained City's 1 front against Mr. Forbes, noting intent to move to State Court as opposed to suit filed in U.S. District Court; that motion will be heard within few weeks; decision expected by 4/1/82. There being no further business to come before the Council , it was MOVED BY STREDICKE, SECOND ROCKHILL, COUNCIL MEETING ADJOURNMENT ADJOURN. MOTION CARRIED. Time: 9: 15 p.m. /9/7.117'd Delores A. Mead, C. I.C. City Clerk ti I, 1 CITY OF RENTC N° 21776 FINANCE DEPARTMENT RENTON, WASHINGTON 98055 2 2 G 19 'RZ RECEIVED OF r )ct di-1 d Cam` Q-0 C2-f" S • TOTAL as © o ,I GWEN E. 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(4)vstiloie , aloud& cud, blQa f 41 is t4 aloud- cl %S clIticia Lad Seill)4 2Gv l 5 gafiq allotoi -thA . dill it J e5 milooktlot dfrd pfret6,16 a/a/A,(1) 64 atfri Renton City Council 2/22/82 Page 6 Ordinances and Resolutions - Continued - Ways and Means Committee - Continued Resolution #2437 The committee recommended reading and adoption of a resolution Proposed Alley setting the date of 5, April 1982 for public hearing on proposed Vacation VAC 3-82 vacation of alley located between Burnett Ave. N and Park Ave. N Kennydale and N 32nd St. and N 33rd St. ; petition filed by Davidson; VAC 3-82. Following reading , it was MOVED BY STREDICKE, SECOND ROCKHILL, RESOLUTION BE ADOPTED AS PRESENTED. CARRIED. Voucher Approval Ways and Means Committee recommended approval of Vouchers #38132 through #38404 in the amount of $982 ,967.72 having received depart- mental certification as to receipt of merchandise/services. Approval includes LID #314 Revenue Warrant R-11 $13,725.80; LID #317 Revenu- Warrant R-7 $23,051 .61 and LID #320 Revenue Warrant No. R-1 $1 ,340. (Machine Voids : #38127 - #38131 ) . MOVED BY STREDICKE, SECOND BY CLYMER, APPROVE VOUCHERS FOR PAYMENT. CARRIED. The committee report recommended withdrawal of request of Personnel Director for amending legislation for Finance Director position, noting present ordinance reflects desired amendment. Stredicke inquired as to date ordinances first codified and process of up- dating to maintain current status. City Clerk Mead explained the Master Code Book is available for departments to check their books , that ordinances first codified in 1957, recodification underway, scheduled for 1982 completion; new Code Books to be issued. NEW BUSINESS Councilman Clymer called attention to Public Hearing 2/25/82 Special Special Meeting Meeting re land use regulations for adult motion pictures , 7:30 p.m. Executive Session Council Chambers . Clymer requested an Executive Session be held following regular meeting to discuss pending litigation. Garbage Contract Councilman Stredicke noted new garbage contract limits the number Increases limited of times collection fees can be increased to once per year and to Once per Year estimated higher costs claiming King County raises dump fees with- out prior notice and often mid-year. Stredicke urged option for contract to allow increase. Finance and Public Works comments invited. ADMINISTRATIVE Mayor Shinpoch commended Clark Peterson, noting presentation of REPORT certificate of merit from the Vocational Technical Institute for his service to students. Mayor Shinpoch spoke to 60 first grade students about the City functions such as clean water, police, parks , etc. The Mayor dis- tributed drawings from the class , noting her enjoyment of the ques- t tions asked, such as "Jo you know where Lola, montana is?" Mayor Shinpoch noted Councilwoman Mathews and City Clerk Mead would be addressing Kennydale School girls in Mayor's absence. National Cities Mayor Shinpoch announced she would be leaving Thursday to attend Conference the National Cities Conference in Washington, D.C. Council Presi- dent Clymer also attending following Council ' s Public Hearing 2/25. HB 1014 Opposed Councilman Stredicke presented letter to state government officials requesting denial of support of HB 1014 and work for passage of sales tax increase without the requirement to prohibit system development fees and limit utility taxes. The letter explained fairness of systems development fees. MOVED BY STREDICKE, SECOND REED, LETTER BECOME OFFICIAL COUNCIL STAND AND AUTHORIZE SENDING . CARRIED. Executive Session MOVED BY STREDICKE, SECOND CLYMER, COUNCIL RECESS TO EXECUTIVE SESSION. CARRIED. 10:45 P.M. Council reconvened in regular session. All Council Members were -present at Roll Call . MOVED BY ADJOURNMENT CLYMER, SECOND STREDICKE, MEETING ADJOURN. CARRIED. 11 :00 P.M. Delores A. Mead, C.M. City Clerk Renton City Council 2/22/82 Page 5 Old Business - Continued - Utilities Committee - Continued Solid Waste the Current Fund/Garbage Account. Referral to Ways and Means Management Plan Committee requested for drafting ordinance. The report also recom- Continued mended the Public Works Department submit a proposal to the Utilities Committee for improvements to the Renton Transfer Station, funding from Referendum 39, Capital Improvement monies - Puget Sound Coun- cil of Government (PSCOG) . MOVED BY MATHEWS, SECOND STREDICKE, CON- CUR IN COMMITTEE REPORT. CARRIED. Deak LCAG Utilities Committee report recommended Council concur with the Public Works Department to approve granting of the Dr. Deak Late- comer' s Agreement in the amount of $19,340 for a period of ten years . The Mayor and City Clerk are authorized to sign agreement. MOVED BY MATHEWS, SECOND STREDICKE, CONCUR IN COMMITTEE REPORT. CARRIED. Utility Portion The committee report noted review of the Six Year Capital Improve- 6-Year Capital ment Program - Utilities and recommended the Public Works Dept. Improvement Pgm. prepare a list of the prioritized projects and their current status. Information only, no action required. Councilman Reed examined the committee report attachment: Proposed Public Works Projects in Prioritized Order and questioned lighting replacement of 155 luminaires (5 year program) , asking re decorative lighting in CBD. Houghton explained 155 luminaires are replacement in downtown, but not decorative street lighting but the high sodium vapor lights. ORDINANCES AND RESOLUTIONS Ways and Means Ways and Means Committee Chairman Stredicke presented ordinance for Committee second and final readings (first reading 2/8/82) which amended (Ordinance #3611 the fee schedules of Title IV Building Regulations and Title IX Number Reserved) Public Ways and Property of the City Code, by adding annexation filing fees and lot line adjustment fees. Annexation filing fee: Ordinance #3612 $200 for 10% petition and $300 for 75% petition (Resolution 2429) . Filing Fee Following reading, it was MOVED BY STREDICKE, SECOND HUGHES, COUNCIL Annexations and ADOPT THE RESOLUTION. Councilman Stredicke questioned same fee for Lot Line single lot annexation as numerous parcel annexation; Rockhill noted Adjustments intent to encourage large annexations. Upon inquiry, Policy Develop- ment Director Clemens noted the filing fee covers basic city costs for processing annexation. ROLL CALL: 5-AYE: CLYMER, HUGHES, ROCKHILL, REED, MATHEWS; ONE NO: STREDICKE. CARRIED. First Reading The Ways and Means Committee recommended first reading for an ordi- nance providing for appropriation and transfer of $36, 188.87 from Cumulative Reserve Fund 3278 Unemployment Compensation to Unemploy- ment Compensation Fund #608. MOVED BY STREDICKE, SECOND CLYMER, REFER THE ORDINANCE BACK TO THE WAYS AND MEANS COMMITTEE FOR ONE WEEK. CARRIED. First Reading The committee recommended first reading of an ordinance authorizing acquisition of property by condemnation in Superior Court for the construction/installation of sanitary sewers , water mains, curbs , etc. in the vicinity of East Valley Hwy and SW 16th St. , LID #314. Following reading, MOVED BY STREDICKE, SECOND ROCKHILL REFER ORDI- NANCE BACK TO THE COMMITTEE FOR ONE WEEK. CARRIED. Ordinance #3613 Ways and Means Committee Chairman Stredicke presented an ordinance Gene Coulon for first reading suspension of rules advance to second and Memorial Beach final readings and adoption. The ordinance provides for issuance. Park Bonds specifies maturities and terms of $1 ,825,000 General Obligation Park Bonds 1982 , authorized by voters at a special election, pursuant to Ordinance No. 3336, amended by Ordinance 3350. Following first reading, it was MOVED BY STREDICKE, SECOND HUGHES, COUNCIL SUSPEND RULES AND ADVANCE ORDINANCE TO SECOND. AND FINAL READINGS. CARRIED. City Clerk Mead read ordinance. MOVED BY STREDICKE, SECOND HUGHES, ADOPT THE ORDINANCE AS READ. ROLL CALL: ALL AYES. CARRIED. r ' / • OF o .`ter OFFICE OF THE CITY ATTORNEY • RENTON,WASHINGTON % `? •z. POST OFFICE BOX 626 100 2nd AVENUE BUILDING • RENTON.WASHINGTON 98055 255-8678 J "4_ n .9 LAWRENCE J.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY O ,0 go DAVID M. DEAN, ASSISTANT CITY ATTORNEY o,9g �� February23, 1982 MARK E. BARBER, ASSISTANT CITY ATTORNEY EO SEP'� • CITY OF RENTON FEB 2 1982 TO: BARBARA Y. SHINPOCH POLICY MEMBERS OF CITY COUNCIL DEVELOPMENT DEPT. DAVID CLEMENS — FROM: Daniel Kellogg, Assistant City Attorney RE: Playtime Theatres , Inc. We are informed by Judge McGovern' s Chambers this afternoon that he has entered an Order this date denying the temporary restraining order requested by Forbes and approving the report of Magistrate Sweigert. This means that the City has won "Round 1" . We are enclosing under this cover copies of the pleadings which we have filed in Federal Court relating to our Motion to Dismiss which will be heard on March 12, 1982 . Ver yours , Daniel Kellogg DK:bjm Enc. cc: City Clerk (�, r T 2 +:.. r • RECEIVED 1 . iviL-emuv PIIILIP Ii. S1VEIGER�^ 2 U. S. DISTRICT -IUD?' I1.S. MAGISTRATE 3 t . 4 . 5 6 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 7 PLAYTIME THEATRES, INC. , ) 8 a Washington corporation, ) and KUKIO BAY PROPERTIES , ) 9 INC. , a Washington ) N0. C82-59M corporation, ) 10 ) DESIGNATION OF PERSON TO Plaintiffs ) TESTIFY AT DEPOSITION 11 vs ) 12 ) CITY OF RENTON, a municipal .) .13 corporation, et al ) : 14 ) — ) 15 TO : PLAYTIME THEATRES, INC. , a Washington corporation, and KUKIO BAY. PROPERTIES , INC . , a Washington corporation; 16 AND TO: JACK R. BURNS, Attorney for Plaintiffs 17 18 PLEASE TAKE NOTICE that the Defendants designate 19 DAVID R. CLEMENS, Director of Policy Planning of the City of 20 Renton, to testify concerning the designated matters identified 21 in the Notice of Deposition Upon Oral Examination directed to 22 the Defendants dated February 17, 1982. 23 DATED: February 22, 1982 24 25 26 Danie Kellogg 27 28 29 30 31 32 DESIGNATION OF PERSON TO TESTIFY AT DEPOSITION WARREN & KELLOGG. P.S. ATTORNIYS AT LAW 100 SO.SGCOND ST..P.O.SOX 626 RIINTON. WASHINGTON 98057 235-8678 . FEB 9 .14A, • • 2 3 4 • 8 7 UNITED STATES DISTRICT COURT 8 FOR THE WESTERN DISTRICT OF WASHINGTON 9 ' PLAYTIME THEATRES, INC. , a ) Washington corporation, et ) 10 al. , ) ) . 11 Plaintiffs; ) NO. C82-59M vs. . ) 12 ) NOTICE OF DEPOSITION THE CITY OF RENTON, et al. , ) UPON ORAL EXAMINATION 13 ) • 14 ) Defendants . ) • 15 TO: The City of Renton and all other Defendants ; and • 18 TO: Warren &. Kellogg, P. S. , their attorneys . 17 18 YOU AND EACH OF YOU, WILL PLEASE TAKE NOTICE that the testi- 19 mony of the persons 'designated on the attached sheet will be taken upon oral examination at the instance and request of the plaintiffs 20 21 in the above-entitled and numbered action before a Notary Public at 22 10604 N.E. 38th Place, Suite 105, Kirkland, Washington 98033; at 23 the time and on the dates indicated on the attached sheet, the said 24 oral' examinations to be subject to continuance or adjournment from 25 time to time or place to place until completed, and to be taken on 26 the ground and for the reason that said witnesses will give evi- 27 dence material to the establishment of plaintiffs ' case. 23 DATED this 1•.T1taay of February, 1982. . 29 HUBBARD, BURNS & MEYER. 30 . i 31 • BY` ... t /Gn LA.-AA -) Ja k R. Burns Att rney for Plaintiffs ' ATTORNEYS AT LAW Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION • Notice of Deposition Page 1 • ° 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 w ' 1 WITNESS DATE AND TIME OF APPEARANCE 2 David R. Clemens • March 3, 1982 at. 1 : 30 p.m. 3 City of Renton . March 3-.4, 1982 at 3 :30 p.m. on 4 March 3, 1982 and reconvening at 9 : 30 a.m. on March 4 , 1982 5 8 7 TO THE CITY OF RENTON:. 8 9 Plaintiffs intend to examine on the following matters : 10 1 . The Zoning Code of the City of Renton, its applications 11 and procedures , including the procedures for obtaining a special 12 permit , conditional use permit , and/or a zoning variance . 13 2 . The building requirements of the City of Renton includ- 14 ing, but not limited to : parking, setbacks', land area, landscaping 15 and buffer zones for construction of a motion picture theatre in 16 those areas of the. City designated by David R. Clemens , Policy 17 Development Director as not falling within the locational regula- 18 tions of Ordinance No. 3526. 19 Pursuant to Federal Rule of Civil Procedure 30(b) (6) , you 20 are directed to designate an officer, managing agent or other. • 21 person to testify concerning the designated matters . 22 23 24 25 28 • 27 28 29 30 31 ATTORNEYS AT LAW Notice of Deposition tion Hubbard, Burns &Meyer Page t i 2 p A PROFESSIONAL SERVICE CORPORATION ` 10604 N.E.38th Place,Suite 10S • Kirkland,Washington 98033 (206)828-3636 • II I. . • II OF RA, I il. 1\ ti ,� OFFICE. OF THE CITY ATTORNEY• RENTON,WASHINGTON II C..) `/ '® POST OFFICE BOX 626 100 2nd AVENUE BUILDING • RENTON.WASHINGTON 98055 255-8678 n III LAWRENCE I.WARREN, CITY ATTORNEY DANIEL KELLOGG, ASSISTANT CITY ATTORNEY o9p Pam. February 24, 1982 DAVID M. DEAN, ASSISTANT CITY ATTORNEY AgTFO SEPS�M�� MARK E. BARBER, ASSISTANT CITY ATTORNEY II I I II III I TO : RON NELSON, BUILDING DEPARTMENT . FROM: Daniel Kellogg, Assistant, City Attorney Dear Ron: We enclose a copy of the Notice of Deposition Upon Oral Examination which, in our response designates. Dave Clemens as the official of the City to be examined Iupon the matters set forth on page 2.' I know that both of you would be able to do a fine job of responding on behalf of the City to the zoning and building .requirements which they will be investigating. I would like for you to leave your schedule open to meet with us on the afternoon of March 3 and all of March 4 to assist Dave in any matters relating to the Building Code. You will note that the deposition is scheduled to be I taken at Mr. Burns' office and we will arrange transportation prior to the deposition. Very truly yours , c;;;;;)---- . Daniel Kellogg IDK:bjm . - . I Enc. cc: Mayor I City Council City Clark ' I Dave Clemens I - 1 r WARREN & KELLOGG, P.S. ATTORNEYS AT LAW �I LAWRENCE J. WARREN 100 SOUTH SECOND STREET TELEPHONE 1DANIEL KELLOGG POST OFFICE BOX 626 (206) 255-8678 MARK E. BARBER RENTON, WASHINGTON 98057 February 23, 1982 • I i Mr . James J. Clancy Attorney at Law 9055 La Tuna Canyon Road Sun Valley, California 91352 Re: City of Renton - ForbesII Dear Jim: I enclose a copy of the Real Estate Contract dated January 26, 1982 between Robert B. McRae and wife and Kukio Bay Properties , Inc .. This is a standard real estate contract used in the State of Washington and, on its face, does not give reason to believe that this sale is conditional . I 'I You will notice that the purchase price is $800, 000 . 00 . Mr. Forbes paid $32, 500 . 00 down and will pay the sum of- $90, 000. 00, together with 18% interest in six monthly I payments of $15, 797 . 27 commencing on February 26, 1982 . The balance of the purchase price will be paid in monthly installments of $9, 720. 16 commencing on February 26, 1982, with a balloon payment ten years and thirty days after the date of closing . That contract bears interest at the rate of 12% per annum. • I notice in paragraph 9 of the contract that the purchaser agrees not to permit the use of the real estate for any illegal purpose. This is a part of the standard 1964A form which is very widely used here in the State of Washington. I doubt that this was especially negotiated for the purpose of making this transaction conditional. In any event, the seller would be free to waive the breach of covenant and Mr. Forbes could hardly contend that he is excused from performance on the basis that he is using the property for an illegal purpose. I ' • i � I f. l4 We are enclosing herewith copies of the following documents for your information: I ' 1 . Letter from Jack Burns dated February 17, 1982 2 . Notice of Motion, dated February 17, 1982 3 . Letter to Jack Burns dated February 22, 1982 4. Letter to Judge McGovern and Magistrate Sweigert with enclosures as listed in letter. 5. Request for Production of Documents We are informed by Judge McGovern' s chambers this afternoon that the request for a temporary restraining order has been denied and the report of Magistrate Sweigert has been approved by the court. We will forward a copy of the Judge' s order to you when we receive it. Ver my yours, Daniel Kellogg DK:bjm Enc. cc: Mayor Council Members David Clemens City Clerk 4 . • ii Erg ', ; t,,.. ..»•r s , r ;.1, . .`{.. ' .. I - / I I • f ILEO for Recc:J at Request ui van. \1`... 4...1%.'tu11 ht.At. t.1tAl . e:\,NIKACI • ' this Contract , made and entered into this ._ ...-_ day ' January, 148:, between Robert B. McRae and Elia C. XOkae, herein- \:ter called "Seller", and Kukio bay properties Inc. . a 1:ashinston f. . :orporat►on, hereinafter called the "purchaser", WITNESSETH: :d tV ri . The seller agrees to sell to the purchaser and the purchaser agrees to purchase from the seller the real estate, with the appurtenances and the personal property, situate in King County, State of Washington, described in Exhibit "A" attached hereto and by this reference made a part hereof. f • The terms and conditions of this contract are as follows: • a The purchase price is Eight Hundred Thousand and no/100 Dollars i•:1 ($800,000.00) , payable as follows: i . II 1. Thirty Two Thousand Five Hundred and no/100 Dollars F • ,$32,500.00) upon execution of this agreement, including ., .2� purchaser's earnest money, receipt of which is hereby acknowledged. 41. .., ! 2. Promissory Note in the amount of Ninety Thousand and ''� no/100 Dollars ($90.000.00) together with 18% interest on the diminishing balance payable in six (6) monthly payments of Fifteen Thousand Seven Hundred Ninety Seven 27/100 Dollars (S)S.797.27) '. i , each, commencing on February 26. 1982. receipt of which Promissory fi rs Note is hereby acknowledged. lc' Ari 3. The balance of Six Hundred Seventy Seven Thousand Five x"' , • Li Hundred and no/100 Dollars ($677.500.00) shall be paid in monthly ' • • installments of Nine Thousand Seven Hundred Twenty and 16/100 Dollars ($9.720.16) or more at purchaser's option on or before the t 26th day of February, 1982 and on or before the corresponding day 'Y• .�$= 3' " of each succeeding calendar month until the balance of said r .. ,�.. ', �7.-i b . Sit{,.', ,,—.:� * ''.A: a1, 1 ; .. . .� i- lrc,!!`rC:' sky. [ . SSEi T r�'' . ' .1. JAM!f,* , ,I,!I' , !'VI x • .I tS ,, cs,Y. .G1,.. he, k7ulyc,t T ,ti. • • 11 • • • purchase price shall have been fully paid. lb. entire halan'.•r of • the purchase price. plus interest , shall be paid on or before ra•n ilUl yearn plus thirtyli (!J) days tram the date of closinK. rna 'I purchaser turther agrees to pay Interest on the dimtnishinr ,I principal balance of said purchase price at the rate of 122 perII I annum from the .2bth day of January, 19b2 which interest shall be 0 deducted from each installment payment and the balance of each payment applied in reduction of principal. 1 • cD H All payments to be made hereunder shall be made at 13520 ' c N.E. 50th, Bellevue, Washington.. or at such other place as the i • seller may direct in writing. } As referred to in this contract. "date of closing" shall be ' r . . I January 26. 1.982. 1. The purchaser assumes and agrees to pay before delin- • quency all taxes and assessments that may as between grantor and ' grantee hereafter become a lien on said real estate.• and if bythe i , • terms of this contract the .... purchaser has assumed payment of any I' mortgage, contract or other encumbrance, or has assumed payment of •.• or agreed to purchase subject to, any taxes or assessments now a lien on said real estate, the purchaser agrees to pay the same . before delinquency. • i. s• r. 2. The purchaser agrees, until the ,A purchase price if fully 1" paid. to keep tha buildings now and hereafter placed on said real yj4 !. estate insured to the actual cash value thereof against loss or :3 damage by both fire and windstorm in a company y acceptable to the •• :r seller and for the seller's benefit, as his interest may appear, I . •'" and co ; 'i, pay all premiums therefor and to deliver all policies and ' renewals thereof to the seller. ir'' 3. The purchaser agrees that full inspection of said real .i'; 1, estate has been spade and that neither theassigns, `.rt '• i seller nor his �''� i •• . 'tee f', 1 • • 1� riAt `` t.'r 4n* n � 1/ • I II - • • ~Njh'','V..)::"tic: ,' f2 _ ..!'... . ,F - 7i i J` {'. .i • .. • +.111 he held to any covenant respecting the condition of ,olv i-:•t.•vrm.•nts thereon nor shall the purchaser or seller or the .,s..1,na of either be held to any covenant or agreement for altera- • • tions , improvements or repairs unless the covenant or agreement relied on is contain •d herein or is in writing and attached to and r.'.i•ir a part of this contract. Y• The purchaser assumes all hazards of damage to or Cdestruction of any improvements now on said real estate or here- ; N after placed thereon, and of the taking of said real estate or any • r4 c part thereof for public use; and agrees that no such damage, N ! x destruction or taking shall constitute a failure of consideration. f In case any part of said real estate is taken for public use, 'the ' ' portion of the condemnation award remaining after payment of • reasonable expenses of procuring the same .shall be Paid to the • • r: seller and applied as payment on the purchase price herein unless 0. the seller elects to allow the purchaser to apply all or a portion • a• of such condemnation award to the rebuilding or restoration of any =' g. improvements damaged by such taking. In case of damage or destruc- t ion from a peril insured against. the proceeds of such insurance kremaining after B payment of the reasonable expense of procuring the ,...,- same shall be devoted to the restoration or rebuilding of such improvements within a reasonable time. unless purchaser elects that • . said proceeds shall be paid to the seller for application on the it purchase price herein. ' • ' 5. The seller has delivered, or agrees to deliver within 15 x •�'` ' days of the date of closing. a purchaser's pclicy of title insur- r g ante in standard from. or a commitment therefor, issued by Common- wealth Title Insurance Company, insuring. the purchaser to the full u = „" amount of said purchase price against loss or damage by reason of �.,' =`''% .•`?r`" :t, ;} �• • ' :GIN t at N r .S flIVI (21 i/�t� 1't 030 r1.• L=n you . ' ? �� 11, MC i j • I • I • ' I • • • detc•:t in seller's title to said real estate as of the dat,• of :losing and containing no exceptions other than the following: • a. Printed general exceptions appearing in said policy tom. • b. Liens or encumbrances which by the terms of this contract the purchaser is to assume, or as to which the conveyance II hereunder is to be made subject; and c. Any existing contract under which seller is pur • - • C chasing said real estate,' none of which for the purpose of this paragraph 5 shall be deemed defects the seller's title. , E6. To the extent this contract embraces personal property. it is the intention of the purchaser, to grant and the seller to a I •. • hold and retain a security interest in accordance with the Uniform i chase price is paid in full. Commercial Code of the State of Washington until the entire pur- ':' ; I e 7. . If seller's title to said. real estate is subject to an I existing contract or contracts under ,which seller is purchasing •' • y • ",� said real estate. or any mortgage or other obligation which seller I is to pay. seller agrees to make such payments in accordance with • • :A the terms thereof and to pay said contract in full prior to the s expiration of this contract; and upon default, the purchaser shall era ' s c . 4• have the right to make any payments' necessary to remove the '�" • .;' .. default, and any �'` '.;' payments so made shall be applied to the payments ,. next falling due the seller under this contract. t .s .! 8. The seller agrees, upon receiving full payment of the ` 41,'. ' fit• =� purchase price and interest in the manner above specified. to ,+.II execute and deliver to purchaser a statutory warranty deed to said -, 1.:'-• :•; • 'l real estate, excepting any part thereof hereafter taken for public ` . :4k,; :-, ,.Q;w ,, use, free of encumbrances except xcept any that may attach after date of ;► '.�,nny�y+ A♦;�.r��;p :'�� e closing through any person other than the seller and subject to i w'`�-`r 1,,, `. lrAy,'''' j t eirr: 0y �cti.` V; . r II II . . I 1 I y • •. ' • • I .Imam / • i i • • • • i ,.':a• cncu;nhrances shown in Exhibit "A", and to execute and deliver to purchaser a hill of sale of the personal property embraced in • Schedule "A". j '. t'nless L different date is provided tor herein, the pur- • .baser shall be entitled to possession of said real estate as of the commencement of business January 26•, 1982, and to retain . • 'I possession so long as purchaser is not in default hereunder. The `; • 0 purchaser covenants to keep the buildings and other improvements on r.• Csaid real estate in good repair and not to permit waste and not to .i . N use, or permit the use of, the real estate for any illegal purpose. The purchaser covenants to pay all service, installation or 4 construction charges for water. sewer, electricity, garbage or other utility services furnished to said real estate after the date • purchaser is entitled to possession. • . • 10. In case the purchaser fails to make any payment herein :'. • • provided or to maintain insurance. as herein required. the seller r ';a. may make such payment or effect such insurance. and any amounts so It paid by the seller, together with interest at the rate of 122 per annum thereon from date of payment until repaid. shall be repayable it._ X by purchaser on seller's demand. all without prejudice to any other ".,, l. t`• right the seller might have by reason of such default. ', 4 !i 11. Time is of the essence hereof. - and in the event the purchaser shall fail to comply with or perform any condition or * , agreement hereof promptly at the time. and in the manner herein l" required. the seller may elect at his option either: (a) to declare •? , .e'' all of the purchaser's rights hereunder terminated on thirty (30) '{u'": '''. days' written notice to the purchaser. all payments wade hereunder "r" ;? and all improvements placed upon the premises beingforfeited • :' to y-, . '�:-. . q Itir the seller and seller having the right to re-enter and take ;' '�^'v.,av Y'': posses- r.�.,..= M. lion of the real estate; or (b) to declare the whole amount of the 'f' '4` y� '''' O : '`'ors ii Xi r a , y.M1 . � LvPL t j�16. Y 1Ic • • I II . II I' 1 • I • • • 1 • I • . I I I • par:hose money or any part thereof to he due and collectible at I I once and proceed in any manner authorized by law to enforce the v. I ' :ollection of the full balance thus declared due. ti • . 1 12. Purchaser agrees to pay all reasonable expenses and. I • 1 fees, including attorney's fees, necessarily incurred in th.f I I . collection of any and all Installments; for the enforcement of any d ' T and all covenants or for termination of I. C purchaser's rights here- I • .r ;' C under and that venue of any action brought hereunder shall be in 1.:. -, N King County, Washington. L. l'' N IN WITNESS WHEREOF, the parties hereto have executed this I' :{ instrument as of the date first written above. i. t- 4 , a k aid' { K ` kr-i-A/ lta C. McRae .:,.. f• . ..,: ,:. „F KUKIO • P ,P4` ES INC. I } • i( • I I • BY �f� � Ink Al m ; Pies t } :;� rY,- ._{ •; STATE OF WASHINGTON ) .> •f $t,' ) • .y COUNTY OF KING as ' JJ� I +11ki ~ On this day of January. 1982, personally appeared *: before me Robert S. McRae and Elia C. McRae to me IQto�u to be the a w;,` K, individuals described herein as Seller. and who executed within r ''' instrument as their free and voluntary act and deed for .h,• ' uses •y. -f';,.A•..',.-' .1 - I I and purposes therein mentioned. -r +; -.,r,. , il A ; GIVEN UNDER MY HAND and official seal the day —"` .-first "^' �:` .• 3 • above written. �..4 '' ' a i •t A , ..,N 6 e 4f ws ton residing .•,axi•. :, `i I. " ;• ;. .19L4,n 1 1'. t, . . • Te .w {t 'II ¢:. II . Ii I I I 'I • I II I. �I• 11 • • • • • • I I I 1 • I II:A!}. OF yr,ASH!Nt.1'tIN t I .l'i Nl1' ti}• kINt: • • • t � he this -�0' day ot January, 19h��, ' I • I :se me Roger11. foes, .t., ,.e known to he the PresidentofpKukto ' 1 e• j t+•ev Properties, Inc. . the Purchaser herein described, and who 1 ‘'necuted the within instrument on behalt ot said corporation as its tree and. voluntary act and ,deed for the uses and purposes therein I mentioned'. • l •• t;1 VEt UNDER .Il' HAND and of f is id' seal the day and v�•' • I above written. �p;,��Eat 1 ; . I f - I I}'• V., a' AI !orth; :..1ar�rate of hashin t residing ;'I; i. a 14 ' • ,Y • ` y {t. k • f„p ,.r • • /iI .7 1' }w. . : Sc to s. g i • x: • �. • . , • • : . .'a. ` " :14 117. s c t ![z �k'�l 1 ; ,'., • .7. } t tr 4's►s �c� r titi• ;Z4 f.1.tf oir� 4 4,,141 zw trr �I 14 1 I i' II 'II• 11 . it • I .I I • I I i I 1 • • 1 1 I I EXHIBIT "A" I II • j ['ARCEL A. ` Lots 1 and 2, Block b, Smither's Sixth Additi:n to the Tovn of ` I Kenton. as per plat recorded in Volume 26 of Plats, Page 47,records of King County; I I PARCEL B: I CC Lot 4 and the West 2 feet of lot 3, Block 34, Smither's 2nd Addition to the Town of Renton, as per plat recorded in Volume 10 of flats. Page 28, - g County;records of Kin I i 4, t .. I C All situate in the County of King, State of Washington. �. '.: ` I .1l ,I . ' i SUBJECT TO: That certain real estate contract filed under King County Auditor's .$ number 780614-0569 dated June 6, 1978 between Irvin Fey, who also appears of record as Irwin John Fey, individually and as personal • representative of the Estate of Mildred M. Fey, who also appears of "1 record as Mildred May Fey, deceased; Robert E. Fey and Carol Ann I Fey, his wife; and Gerald Wayne Maris and Helen Maris, his wife. Sellers; and Robert B. McRae and Elia C. McRae. husband and wife. ' -I Pur.hasers, which the seller agrees to pay in full prior to January t 26, 1992. T t' i it, ,e ALSO SUBJECT TO: i,r A party wall agreement and the terms and conditions thereof dated 'I,,t ' May 25. 1940 recorded under King County Auditor's number 3106260. a i.� side sewer easement recorded under recording number 3106260. an t`' easement disclosed by the plat of said addition and restrictions, r,c ;' conditions and covenants contained in an instrument recorded under King County Auditor's number 780614-0569. 5 ' • Yf r> I TOGETHER WITH: • The personal property and theatre equipment described on Schedule "A" attached hereto and made a part hereof. f =' 51l� l0SSaa4' 'ii H. . � ti��-.1IIITf ,x- . lifiAi • 4 Jf r� 1 T M i tiSr A 4, c ,,9'y<. • • , I ,I l 11 IJr • • • • • • • • 4 • • • SCHEDULE "A" • Y. Rosy Theatre • • • • 720 Seats 1'. i. Projection Booth . Platter System Projector ' Sound Head . Xenon System Y Sound System . Lenses • i . y• . Concession Equipment I. Bar Popcorn Machine ; Ice Machine y.-. m Screen and Drapes • Air Conditioning System and Heat Pump r'• Z. Renton Theatre s • 540 •Seats " • Projection Booth N Platter System •f. Projector �; Sound Head , •Xenon System '` Sound System • •Lenses Concession Equipment V • • ' Bar Popcorn Machine Screen I - Air Conditioning System {Aj;F ..„ { ..r �rt g - $'4, $f izOLE �kt, .•1 'PYr' . ✓ r . .....4 ''' 4... 4 4-4. ^ �� ' T i � I a x.� ,4,. .. yW` ,1 .+ ,s4v ','• ;� v „ y5 Vi.Y� V'+M. , 1:n y k W �1. K� ' 4rtVi� ' � .1 ,K V.ti � 4?,744,,,,.Y f,t `� , ,.� W g:•,...,.•":,1-,ifi v fit' ,...'::'.: `,..'1 .. , '.t: ,ram . Ir l.1 ",N!,J1' 4 7 ,.I ♦. . , t. -"-'ir'1,.'] . • • • • • • • • • • • STATE OF WASHINGTON County of King ss The Director of Records & Elections, King County, State of Washington, and exofficio i co:,ier of 1).._.d.; :,:-d °the, instruments, do hereby certify the foregoing cony h:s (;. e;; _ F.red V itli the original Instrument as the same- ' appears on file and , i' d i, tli ffiec,and that the same is a true and perfect transcript of said original and of the whole thereof. I Witness n:y hand and official seal this F.E.B.22 1982 'm y of.-,.�....., , 19 . • • Director of Ree s & E ctions Deputy • • • • • • • • I ' e%TTORNEyS AT LAW JACK R.BURNS OF COUNSEL DAVID R.MEYER Hubbard, Burns & Meyer LAMES R. HUBBARD GLENNA BRADLEY-HOUSE r ` A PROFESSIONAL SERVICE CORPORATION I " February 17, 1982 Daniel Kellogg Warren & Kellogg, P.S. P.O. Box 626 Renton, Washington 98057 Re: Playtime Theatres Inc. , et al. vs . City of Renton et al. Cause No. C82-59M Dear Mr. Kellogg: - This will confirm that plaintiffs ' Motion for a Prelimi- nary Injunction will be heard before Magistrate Sweigert on March 19, 1982, beginning at 9 :30 a.m. Ve y truly yours , Jack R. Burns JRB:nr cc Magistrate Sweigert Clerk of the Court • RECEIVED FEB 1 8 1982 Yarrow Bay Office • I \ 10604 N.E. 38th Place, Suite 105 • Kirkland, Washington 98033 • (206) 828-3636 1 2 • 3 4 5 6 7• UNITED STATES DISTRICT COURT 8 FOR THE WESTERN DISTRICT OF WASHINGTON 9 PLAYTIME THEATRES, INC. , a ) Washington corporation, et ) \ 10 al. , 11 Plaintiffs , ) NO. C82-59M vs. 12 ) NOTICE OF MOTION THE CITY OF RENTON, et al. , ) • 13 14 Defendants . 15 TO: Clerk of the Court; and \16 TO: The above named defendants ; and �7 TO: Warren & Kellogg, P. S. , their attorneys . 18 PLEASE TAKE NOTICE that plaintiffs ' . Objections to the Report 19 and Recommendation of the Magistrate will be brought on for hearing 20 on March . 5, 1982 at 9 : 30 a.m. , or as soon thereafter as the matter 21 may be heard. Pursuant to Local Rule, the matter will be 22 I considered without oral argument unless otherwise directed by the 24 Court . 25 DATED this / l Iday of February, 1982. HUBBARD, BURNS & MEYER 26 • 27 BY :i(.( ) ). 1 28 $Tack . Burns • Attorney for Plaintiffs 29 32 31 ATTORNEYS AT LAW Hubbard, Burns & Meyer Notice of Motion A PROFESSIONAL SERVICE CORPORATION II - 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828.3636 I ' •▪ t t.. R _ 1 2 3 4 5 • 6 ' 7 UNITED STATES DISTRICT COURT 8 FOR THE WESTERN DISTRICT OF WASHINGTON 9 PLAYTIME THEATRES, INC. , a ) Washington corporation, et ) 10 al. , ) ) 11 Plaintiffs, ) NO. C82-59M vs. ) 12 ) CERTIFICATE OF SERVICE THE CITY OF RENTON, et al. , ) 13 - ) ) 14 Defendants . ) 15 I certify that I served a copy of this Notice of Motion on 16 17 the parties to this action on February 17, 1982, by mailing copies , 18 postage prepaid, to them at the following addresses : �9 Daniel Kellogg Warren &. Kellogg 20 100 So. Second Street P .O. Box 626 21 Renton, Washington 98057 2 I certify under penalty of perjury that the foregoing is true and 2I3 correct. 2a 1� ' 1L.� 28 Jac R. Burns I ' 26 27 28 29 I 30I 31I ATTORNEYS AT LAW Certificate of Service Hubbard, Burns & Meyer A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (2061 828-3636 • • • I t I - I . II 1 2 3 4 5 8 - 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON • 9 PLAYTIME THEATRES, INC. , a ) 10 Washington corporation, and KUKIO ) BAY PROPERTIES, INC. , a Washington) 11 corporation, ) NO. C82-0059M ) 12 Plaintiffs , ) REQUEST FOR PRODUCTION vs . ) OF DOCUMENTS FOR 13 • ) INSPECTION AND COPYING THE CITY OF RENTOI1, et al . , " ) 14 ) 15 Defendants . ) TO: The City of Renton and all other defendants ; and 16 TO: Larry Warren , attorney for the City of Renton. 17 16 Pursuant to Rule 34 of the Civil Rules of the Superior 19 Court of the State of Washington, the plaintiffs request that 20 defendants permit the plaintiffs or their agents , and/or attorneys 1 21 to inspect a copy of the documents hereinafter described . 22 "Document" as used herein means any memorandum, report , I23 study, contract, agreement , chart , graph,% index, data sheet , data 24 processing card or tape, note , entry, telegrams , letter, advertise- 25 ment , brochure, circular, tape , record , bulletin , paper , book, 26 pamphlet , account , photograph and any other written , typewritten , 27 handwritten or other graphic matter, any electronic or other 28 recording of any kind or nature , any mechanical or electronic sound recordings or transcripts thereof, however produced or reproduced , and all copies or facsimiles of documents by whatever means made . 31 • Plaintiffs ' Request for ATTORNEYS AT LAW Production of Documents Hubbard, Burns &Meyer j Page 1 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828.3636 i ' •• _,} ' I I 1 The aforesaid production for inspection and copying shou 2 be made at the offices of Hubbard , Burns & Meyer, 10604 N.E. 38 , 3 Place, Suite 105 , Kirkland, Washington, .within twenty (20) da 4 after service of this request . Inspection and copying will 5 conducted by the undersigned attorneys or their agents and wil 6 continue from time to time and from day to day until completed . 7 This request for production shall be deemed to be continu 8 ing in nature , calling for prompt production by defendants of al 1 9 documents which come into their actual or constructive possession 10 trust , care or control at any time in the future , as well as al ' 111 documents now in their actual or constructive possession , trust 12 care or control . The specificity of: any request shall not b= 13 construed as reducing the scope of any more generalized requests . 14 Documents responsive to the following requests, contain 15 . information relevant to matters involved in this action and are 16 reasonably calculated to lead to discovery of evidence relevant to 17 such matters . If you withhold from producing any documents other- 8 wise requested herein under a claim of privilege, please : (1) 19 identify each such document with sufficient particularity as to 20 author(s) , addressee(s) , or recipient(s) , the contents to allow 21 plaintiffs to bring the matter before the Court ; (2) state the 3nature of the privilege(s) asserted; and (3) state in detail the 1 factual basis for the claim of privilege. 24 DOCUMENTS TO BE PRODUCED 2! Plaintiffs request that you produce and make available for 26 inspection, separately, in response to each numbered paragraph, all 27 documents which contain; in whole or in part , which refer to , in 28 . whole or in part , or which reflect , in whole or in part , the 29 following: 30i 31I - Plaintiffs ' Request for ATTORNEYS AT LAW Production of Documents Hubbard, Burns &Meyer Page 2 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 . j 1 1. All video tape recordings , magnetic sound recordi 2 and transcribed transcripts of the Planning & Development Commit . 3 of the Renton City Council relative to consideration of Ordina 4 No. 3526. 5 ANSWER: 6 7 2 . All video tape recordings , magnetic sound recordin; 8 and transcribed transcripts of City Council meetings of the City 9 Renton relative to consideration of Ordinance No . 3526 . 10 ANSWER: 11 ' 12 3 . All studies done by the Planning Department , Plannin H3 Staff, or used or considered by the Planning Department or Staff 14 in the preparation or formulation of Ordinance No . 3526 , or an , 15 report relative thereto to the Planning Commission and/or . the Cit 116 Council. 17 ANSWER: 18 19 4. All information, studies , or other documents in the ,20 possession of the City of Renton , its agents , servants or 21 attorneys , relative to the effect of adult businesses on property 22 values in neighborhoods in the City of Renton.. 23 ANSWER: 24 25 5 . All reports , letters , studies or other forms of 26 communication of the City of Renton Police Department or any other 27 law enforcement agency relative to the crime associated with the 28 location of adult businesses in general , and in the City of Renton, 29 in particular. 30 ANSWER: 31 ' Plaintiffs ' Request for ATTORNEYS AT LAW Production of Documents Hubbard, Burns & Meyer Page 3 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • 1 2 6. All crime reports generated by the City of Renton g , I Police Department in the past five years relative to any and all , ,, 4 crimes associated with adult businesses , together with any and all 5 crime reports relating to prostitution and assault within the City 6 of Renton. 7 ANSWER: ' 8 9 7 . All studies , reports or other evidence of discussions 10 of any department of the City of Renton in the past five years 11 relative to the control of, proliferation of, or effect of, adult 12 theatres or adult bookstores in or on residential neighborhoods . 3 ANSWER: 14 15 8. All studies for long range improvements in the 17 neighborhoods where the Roxy Theatre and Renton Theatre are 17 located, together with evidence of any development funds actually 18 spent in those neighborhoods in the past five years . 19 ANSWER: 20 • 21 9 . All correspondence , memos , or other evidence of 22 communications received by the City of Renton or any of the 231 defendants or their agents or servants from the public relative to 24 1 Ordinance No. 3526 and all replies thereto. 25I ANSWER: 26 271 10. All interdepartment memorandums , correspondence or 28 other communications between agents , servants , employees and/or 29 elected ,or appointed officials of the City of Renton relative to 30 Ordinance No. 3526. 31 Plaintiffs ' Request for AITORNEYSATLAW Production of Documents Hubbard, Burns &Meyer Page 4 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828.3636 I I 1 1 I, 1 1 ANSWER: . 2 I i • 3 11 . An.y documents in the possession of any of the 4 defendants or their agents or servants which support or in any way 5 bear upon the legislative determination that an adult entertainment '1 . ll 6 use would have a severe adverse impact upon surrounding businesses 7 ' I and residences . 1 8 ANSWER: 9 , 10 . I 11 , I DATED this day of February, 1982 . 11 12 HUBBARD, BURNS & MEYER 13 44,..V. 7. *., 1 14 BY Jack R. Burns 15 Attorney for Plaintiffs 1 . • '1 16 STATE OF, WASHINGTON ) . ) ss . 17 COUNTY OF KING ) , . : 18 • , being first duly sworn ' 1, on oath deposes and says : That I am the I 19 in the above entitled matter, that I have read the foregoing i requests for production of documents and answers thereto , know the , i 20 contents thereof and believe the same to be true . 21 • 22 SUBSCRIBED AND SWORN to before me this day of • , 23 1982. I, I 24 II 25 Notary Public in and for the State of Washington residing at 26 27 , 28 I I 29 30 I • 1 31 I 1 ATTORNEYS AT LAW I Plaintiffs ' Request for Hubbard, Burns & Meyer Product ion of Documents A PROFESSIONAL SERVICE CORPORATION I Page 5 10604 N.E.38th Place,Suite 105 1 • Kirkland,Washington 98033 (206)828-3636 it • WARREN & KELLOGG. P.S. ATTORNEYS AT LAW LAWRENCE J. WARR'EN , 100 SOUTH SECOND STREET TELEPHONE DAINIEL KELLOGG 1206) 255-8678 POST OFFICE BOX 626 M AIRK E. BARBER RENTON, WASHINGTON 98057 - I February 22, 1982 I , Mr. Jack R. Burns Attorney at Law 10604. N. E. 38th Place, Suite 105 Kirkland, Washington 98033 Re: Playtime Theatres, Inc. , et al vs . City of Renton, et al Dear Jack: We enclose copies of the documents set forth in the enclosed Certificate of Service which have been filed with the federal court this date. We also enclose to you a copy of the Summons and Complaint which we have filed in King County Superior Court against Playtime and Kukio Bay. We are attempting to obtain personal service of these documents upon Mr. Forbes . If you are in position to acknowledge service of the Summons and Complaint, please -contact me and foward your acknowledgement to us for filing. We also would request that you advise our office if you are willing to stipulate to the admission of Mr. Clancy as associate counsel for us in the State and Federal actions . If so, we will prepare an appropriate Stipulation, for signature by all parties . I Very truly yours, C;-:- -;)-----", Daniel Kellogg I; DK:bjm 1 Enc. \ i7-\4. , ' . ,' P.S.WARREN & KELLOGG, ATTORNEYS AT LAW „_,_, I LAWRENCE J. WARREN I 100 SOUTH SECOND STREET POST OFFICE BOX 626 I V e� ELEPHON DANIEL KELLOGG� f206) 255-6= MARK E. BARBER RENTON. WASHINGTON 98057 til ,I s:_ I �.7 , Lt February 22, 1982 U. S. DISTRICT JUDGE Honorable Walter T. McGovern, Judge United States District Court 710 United States Court House Seattle, Washington 98101 RECEIVED I Honorable Philip K. Sweigert, Magistrate United States District Court , 'p 2 r• • 304 United States Court House Seattle, Washington 98101 PHILIP K. Sv,7 Acrt'r U.S. MAGUTR, T'}�. Re: Playtime Theatres, Inc. , et al vs . City of Renton, et al C82-59M \ . Gentlemen: ' Under this cover we are enclosing copies to each of you the following-documents: 1. Documents in relation to Motion to Dismiss : a. Notice of Motion to Dismiss b. Motion to Dismiss Complaint Pursuant to F.R.C.P. 12(b) (1) and 12 (b) (6) . c: Memorandum of Points and Authorities in Support of Defendants Motion to Dismiss Complaint. 2. Documents relating to setting of Motion to Dismiss before District Court Judge: . \ . a. Notice of Motion for Hearing Motion to Dismiss Before District Court Judge. b. Defendants .Motion for Hearing Motion to Dismiss \ • Complaint Before District Court Judge. c. Order to Hear Motion to Dismiss Complaint Before District Court Judge. \ - 3 . Documents relating to Application for Permission to Participate: a. Notice of Application for Permission to Participate b. Application for Permission to allow James J . Clancy to participate as counsel. c. Order granting leave to participate. We are given to understand that dispositive motions herein have been referred to U. S. Magistrate Philip K. Sweigert by ex parte order entered herein prior to our appearance. It is our desire that the motion to dismiss pursuant to F.R.C.P. 12(b) (1) and (6) be heard by Judge McGovern. However, we are taking the precaution of furnishing both Magistrate Sweigert and Judge McGovern with copies of our motions and we will confirm with your offices regarding the setting of these motions. Please contact the undersigned or Mark E. Barber of our offices, if there are any questions relating to this matter. Ve my yours Daniel Kellogg /, DK:bjm Enc. cc: Jack R. Burns Clerk of Court, U. S. District Court I ' 6 ..A w.Yy 1}r).. • F 3 2 2198a • 1 VVALi tit I. lViCUUVEJ' . 2 U. S. DISTRICT JUDO'"REvD • 5 IAN 6 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 7 PLAYTIME THEATRES, INC. , a ) 8 Washington corporation, and ) KUKIO BAY PROPERTIES, INC . , ) NO. C82-59M . g a Washington corporation. ) ) 10 • Plaintiffs NOTICE OF MOTION TO DISMISS 11 vs ) ' ) 12 CITY OF RENTON, a municipal ) • corporation, et al . ) 13 ) Defendants . ) 14 ) 15 PLEASE TAKE NOTICE that the Defendants will move to dismiss 16 the above-entitled action pursuant to rules 12(6) (1) and 12(b) (6; 17 of the Federal Rules of Civil Procedure upon the grounds - that 18 the court lacks jurisdiction over the subject matter of the 19 lawsuit ,and the Plaintiffs have failed to state a claim upon 20 which relief can be based, on March 12, 1982. at 9 : 30 A.M. or at 21 such other time as the court may hereinafter direct. 22 Defendant is requesting by separate motion that Defendants ' 23 Motion to Dismiss referred to above be set for hearing before 24 United States District Court Judge Walter T. McGovern. . 25 • DEFENDANTS REQUEST ORAL ARGUMENT UPON THIS MOTION. 26 ' DATED: February 22, 1982. 27 28 29 Daniel ellogg, A for for Plaintiff 30 31 32 NOTICE OF MOTION TO DISMISS WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO.SECOND ST..P.O.BOX 020 RENTON, WASHINGTON 98057 255.8678 • F:B 2 2 1982 . 1 WAL' V K 1, tvic,uU , 2 U. S. DISTRICT. JUDI2 1 `.:: ' • 8 4 6. 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE WESTERN DISTRICT OF WASHINGTON 10 PLAYTIME THEATRES, INC. , a Washington ) corporation, and KUKIO BAY PROPERTIES, ) NO. C82-0059M 11 INC. , a Washington corporation, ) ) MOTION TO DISMISS 12 Plaintiffs, ) COMPLAINT PURSUANT TO ) F.R.C.P. SECTION 18 • vs. : ) 12 (b) (1 ) and 12 (b) (6) . 14 THE CITY OF RENTON, et al . , ) ) 16 Defendants. ) 16 • 17 COME NOW the Defendants and move to dismiss the above' .entitl 18 action pursuant to Rule 12 (b) (1) and 12 (b) ( 6 ) of the Federal Rule 19 of Civil Procedure, in that the Court lacks jurisdiction over the 20 subject matter of the lawsuit and the plaintiffs have failed to 21 state a claim upon which relief can be based . 22 This motion is based upon , the Memorandum of Points and 28 Authorities in Support of Defendants ' Motion to Dismiss which 24 accompany this motion. 26 Defendants further move that this matter be set for hearing 26 and oral argument as soon as practicable. 27 DATED: February 22 , 1982 28 . 29 80 MOTION TO DISMISS PURSUANT TO F.R.C.P. Daniel Kel og 81 SECTION 12 (b)'(1 ) AND llllll��((��(((��J�J 12(b) (6) . 82 • WARREN & KELLOGG. P.B. • • ' ATTORNRYS AT LAW 100 SO.SCCONO ST..P.O.Sox Sig RRNTON. WASHINGTON 0E067 pas-867R I . \ 4 ' 7 ( a ,y- i ,TB 2 21982. , 1 WALiLK i. NicLIOV";. . 2 U. S. DISTRICT JUD . I84 I6 6 I ? . I8 UNITED STATES DISTRICT COURT I 9 FOR THE WESTERN DISTRICT OF WASHINGTON I 10 PLAYTIME THEATRES, INC. , a Washington ) corporation, and KUKIO BAY PROPERTIES, ) NO. C82-0059M I 11 INC. , a Washington corporation, ) ) MEMORANDUM OF POINTS 12 Plaintiffs, ) AUTHORITIES IN SUPPO' ) OF DEFENDANTS ' MOTIO 18 . vs. DISMISS COMPLAINT ) PURSUANT TO F.R.C. P. 14 THE CITY OF RENTON, et al . , ) SECTION 12 (b) (1 ) AND 12 (b) (6 ) . 15 . . Defendants. ) ) 16 17 STATEMENT OF FACTS 18 City of Renton Ordinance No. 3526 is a zoning ordinance 19 . entitled "An Ordinance of the City of Renton, Washington, Relatin 20 to Land Use and Zoning",. By its terms, adult motion picture 21 theaters, as defined in the ordinance are a prohibited land use 22 within the area circumscribed by a circle which has a radius 28 consisting of the following distances from the following specified 24 uses or zones: . 26 • a. Within, or within one thousand feet of any residential zone, or any single family or multiple 26 family residential use. • 27 b. Within one mile of any public or private school . 28 c. . Within one thousand feet of any church or other religious facility or institution. 29 d. Within one thousand feet of any public park or P-1 80 zone. \ 81 The Renton Theater and Roxy Theater, located in the City of 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C. P, WARREN as KELLOGG. P.S. ATTSECTION 12 (b) ( 1 ) AND 12 (b) (6) P. 1 SEONDSTRNEYS ATLOW � goo�o.SECOND rT..P.O.SOX SAS RENTON. WASHINOTON 08057 !SS-8878 I \ ., , 1 Renton, are owned and operated by the Playtime Theaters, Inc. , 2 Washington corporation (hereinafter called "Playtime" ) and Kuk 8 Bay Properties, Inc. , a Washington corporation (hereinafter cal ' 4 "Kukio" ) , under lease agreements which provide that such premis I5 ate to be used for the purpose of conducting the business of an I 6 adult motion picture theater exhibiting adult film fare. Both 1 ? theaters are located within the prohibited land use area describ 8 by City of Renton Ordinance No. 3526. 9 On January 20, 1982 , "Playtime" the lessee and operator of I10 theaters and "Kukio" the owner and lessor of the premises filed . 11 pleading in this Court entitled "Complaint for Declaratory Judgme I 12 and Preliminary Injunction" which sought: 18 (1) a declaratory judgment declaring City of Renton 14 Ordinance No. 3526 to be unconstitutional as written, in whole. and/or in part, and in its 16 threatened application to the plaintiffs ; 16 (2) a preliminary injunction restraining the defendants and their agents, servants, . employees and attorneys 17 and others acting under their direction and control from enforcing or executing and/or threatening to . 18 enforce and/or execute the provisions of Ordinance No. 3526 in whole and/or in part, by arresting 19 plaintiffs, their agents, servants or employees, and/or threatening to arrest plaintiffs, their agents, servants and employees and/or harassing , threatening to close, or otherwise interferring with 21 plaintiffs ' peaceful use of the premises. 22 (3 ) A permanent injunction after final hearing; and 28 (4 ) an award of such damages as plaintiffs have sustained by reason of loss of business, the 24 expenditure of assets to enforce rights guaranteed by the U.S. Constitution, and reasonable attorney ' s 25 fees and other damages as may bed established . I • 2I6 On January 25, 1982, the plaintiffs herein caused an "Order to 27 Show Cause Why Temporary Restraining Order Shall Not Issue" to be 28 issued, which set a hearing date of January 29, 1982 at 1: 30 p.m. 29 Following a hearing on the issue as to whether a temporary 80 restraining order should issue, United States Magistrate Philip K. 81 Sweigert gert thereafter filed his "Report and Recommendation" on 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO I DISMISS COMPLAINT PURSUANT TO F.R.C. P. WARRENKELLOGG, P.S. (SECTION 12 (b) (1 ) AND 12 (b) ( 6 ) P. , 2 '°°so.S CCONO ST..P.o SOX GIS RINTON, WASHINGTON 98087 888-8878 I • I i i • 1 February 3, 1982 in which he recommended that the Court deny t 2 Plaintiff 's request for a temporary restraining order. In his 8 transmittal letter, the parties were informed that if no timely 4 objections were filed , the matter would be ready for 'a ruling b 5 the trial judge not later than February 16, 1982. jI 6 On February 8, 1982 , the Plaintiffs served a copy of a 7 pleading entitled "Amended and Supplemental Complaint for 8 Declaratory. Judgment and Preliminary and Permanent Injunction" I9 which prays for the same relief as was sou ght in the original 10 complaint which was filed upon January 20, 1982. 11 On February 19 , . 1982 , the Defendant City of Renton 12 (hereinafter called "Renton" ) filed a Civil Complaint for 18 Declaratory Judgment under R.C.W. Chapter 7. 24 in the Superior 14 Court of Washington for King County naming the la ' p intiffs in this 16 federal action as defendants, entitled Cit al of Renton, a munici p 16 cor oration, laintiff, vs. Playtime Theatre, Inc. a Washin ton 17 cor oration and Kukio Ba Pro erties Inc. , a Washin coon 8 corporation. defendants. In such complaint, p • a copy of which is1 I9 attached'" as Exhibit 11A 11 to these points and authorities, the 20 plaintiff is seeking a declaratory judgment to resolve the 2I following controversy and dispute which now exists between the City 22i of Renton and Playtime and Kukio relating to their legal rights,28 duties and the effect of City of Renton Ordinance No. 3526 upon 24said Washington corporations : 25 a. Renton claims that City of Renton Ordinance No. 3526 26 lis constitutional on its face. Playtime and Kukio claim that said 27 ordinance is unconstitutional on its face. 28 b. Renton claims that Cityof Renton enton Ordinance ,No. 35261 29 is constitutional as it is applied to the specific land use 80 proposed by Playtime and Kukio. Playtime and d Kukio claim that said 81 ordinance is ,unconstitutional as applied to the specific land use 82 MEMORANDUM OF POINTS AND AUTHORITIES IN\ SUPPORT OF DEFENDANTS ' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C. P.SECTION 12 b WARREN ee KELLOGG. P.S. ( ) (1 ) AND 12 (b) (6 ) P. 3 ATT11N�llt AT LAW I 100 f0.SECOND fT..P.O.BOX fait \ - RINTON, WASHINGTON 9a057 255.8878 I . I • 1 proposed by them. 2 c. Renton claims that the component parts of Cit • 8 Renton Ordinance No. 3526 are independant and severable and t 4 the Superior Court of Washington for King County has the duty 5 obligation to interpret the same in a constitutional manner, • 6 to give effect to the general purpose of the City Council of 7 City of Renton and its manifest intention. Playtime and Kuki• 8 claim that said ordinance is not susceptible of a constitutio I9 construction and is not severable. 10 d. Renton claims that, pursuant to the provisions I 11 City of Renton Ordinance No. 3526, an "adult motion picture 12 theater" is a permitted use within the B-1 and more intensive I18 use zoning classifications currently in use within the City of I14 Renton except to the extent that the specific use is prohibite. 15 the terms of said ordinance, and that there is no necessity fo 16 application for a special permit, conditional use or variance p 17 to the commencement of such specific land use. Playtime and Ku 18 claim in their "Amended and Supplemental Complaint for Declarat, 19 Judgment and Preliminary and Permanent Injunction" , filed on 20 February 9, 1982 in this Court, that City of Renton Ordinance N. 21 3526 provides a new use classification within the zoning laws of 22 the •City of Renton of an "adult motion picture theater" which is 28 not a permitted use within any zoning classification currently i it 24 the City of Renton, thereby requiring Playtime and Kukio to obta I25 a special permit, conditional use or variance prior to commencem: • 26 of such use. 27 e. Renton claims that the filing of the federal lawsu ' 28 herein is premature in that Playtime and Kukio have failed to 29 exhaust their administrative remedies under the Zoning Code of th 80 City of Renton by .reason of their failure to request an 81 administrative determination of the necessity of application for 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION TO WARREN ee KELLOGG. P.S. DISMISS COMPLAINT PURSUANT TO F.R.C.P. ATTORNEY.AT LAW SECTION 12 (b) (1) AND 12 (b) (6 ) P. 4 'RENTON. WASHINOtON 98057 255.8878 . • ' `; 1 i\ 1 special permit, conditional use or variance from which appeal may I 2 be made from an unfavorable determination as provided in the Zoning! 8 Code of the City of Renton, and that said administrative remedies l I 4 are adequate and appropriate. Playtime and Kukio claim •that they 5 are not required to exhaust their administrative remedies prior to 1! ' IIII 6 the filing of a lawsuit raising said claim. � II 7 II I Ii 8 LEGAL ARGUMENT 1I I 9 The plaintiffs were denied a temporary restraining order under! 10 their original complaint. They have abandoned their original 1 ` ! I. 11 complaint, 71 C.J.S. S716 and , pursuant to Rule 15 of the Federal ; , Rules of Civil Procedure., have filed an amended pleading . Within 1 ' 12 I • 1$ the time allowed to file a response to such amended pleading , II 14 Renton has filed a Complaint for Declaratory Judgment under Chapter! 1 15 7. 24 R.C.W. wherein it seeks to have the state court render its H 16 interpretation of the constitutionality of City of Renton Ordinances 17 No. 3526 and resolve the same issues which. the plaintiffs seek to i 18 have litigated in this federal court. Because a state civil action! ! 19 is now pending in the state court involving the same issues and the I 80 construction to be given a city ordinance, this federal action must 21 be dismissed for the following reasons: I 22 Re: Statutory Construction. • (1 ) The subject of this action is a city ordinance which is before a state court for its initial 24 interpretation. The only question before this court is whether the city ordinance is unconstitutional on 25 its face and could not be rendered constitutional by any decision of the state .court. Stecher v. Askew, f 26 432 F. Supp. 997 at 999. The answer to that ; question requires a dismissal . ! i 2 I (2) A federal court lacks jurisdiction to ' 28 authoritatively construe state legislation. U.S. v. ! 37 Photographs, 402 U.S. 363 . In contrast, a state ' 29 court is under a constitutional duty to construe state legislation in a constitutional manner. See 1 80 . , People ex rel. Busch v. Projection Room Theater, 17 . Cal. 3d 55 at 56. The cardinal principle of 81 statutory construction in such matters is to save 182 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO DISMISS. COMPLAINT PURSUANT TO F.R.C.P. . WARREN & KELLOGG. P.S. I ATTORNEY.AT LAW 1 SECTION 12 (b) (1) AND 12 (b) (6) P. u 5 100 so. ST..P.O.SOX.a• RENTON. WASHINGTON 95037 233.867E I II II \ ( 1 and not to destroy. Tilton v. Richardson, 403 U.SI 672 at 684. , Further., any additional construction 2 given by a state court to the city ordinance is • • . binding on the federal courts. If the state court ` 8 says "black" is "white" , the federal court must 1I accept the fact that "black" means "white" . 4 Kingsley Pictures Corp. v. Regents, 360 U .S. 684 . I 6 Re: Jurisdiction & Abstention. ,, i 6 (1) Where plaintiffs are unable to plead facts which , I i, would establish the "extraordinary circumstance" 1 7 exception which the U.S. Supreme Court has mandated ', ) 1 for federal jurisdiction in civil injunction. cases, ` ' 8 Huffman v. Pursue, Ltd. , 420 U.S. 592 , the federal courts lack jurisdiction and the state action raises�l 9 a "bar" to federal action. Moore v. Sims, 442 U .'S. 0 415. For the same reason, abstention is required . li 10 l (2) Playtime and Kukio have failed to exhaust their I 11 administrative remedy re the zoning interpretation L raised in their amended pleading and are concluded 1 12 -. by the rationale expressed in Patsy v. Florida I\ International Univ. , 634 F. 2d 900 , cert. granted by i, 18 the U.S. Supreme Court and argument scheduled for I' March 1, 1982 . I\ 14 16 I 16 WHERE A CIVIL STATE STATUTE OR CITY ORDINANCE . IS CONSTITUTIONAL ON ITS FACE OR • CAN BE 17 RENDERED CONSTITUTIONAL BY FURTHER INTERPRETA- TION BY A STATE COURT, A PLAINTIFF HAS NO 18 STANDING TO ATTACK THE SAME IN THE FEDERAL COURT ON CONSTITUTIONAL GROUNDS, AND A FEDERAL • 19 JUDGE LACKS JURISDICTION AUTHORITATIVELY TO CONSTRUE SUCH . STATE LEGISLATION IN THE FIRST 20 • INSTANCE. • 21 A. The Federal Court Has Jurisdiction Only To Decide If The 22 City Ordinance Is Susceptible To A Construction Which Will 28 Render The Statute Constitutional. 24 A state court may construe a state statute or city ordinance 25 which appears unconstitutional on its face in such a way as to 26 • render its application constitutional. Where, as here, the sole 27 question presented to the federal court is the facial , 28 constitutionality of a state statute,' plaintiff has standing to 29 assert, and the federal court has jurisdiction to decide, only one 80 issue: to wit, whether the state statute is unconstitutional on 81 its face and could not be rendered constitutional by any decision . 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF- DEFENDANTS ' MOTION TO WARREN & KELLbGG. P.s. DISMISS COMPLAINT PURSUANT TO F.R.C.P. ATTORNRYIATLAW SECTION 12 (b) (1 ) AND 12 (b) (6 ) P. 6 10,0 SO.SECOND RT.. ''O.BOX GIS RENTON. WASHINGTON 98057 • i I 1 of the state court. i 2 This rule of law was concisely ' expressed by the United States I •I 8 District Court, M.D. Florida, Tampa division in Stecher v. Askew, d ,i 4 432 F.Supp. 997 at 999 (1977 ) : 1 I5 "While as a general rule a State Supreme Court may construe a statute which appear unconstitutional on its face '� i 6 in such a way as to render its application constitutional , I see, e.g. , Wainwright v. Stone, 414 U.S. 21 (94 S.Ct. 190 , 38 , 7 L.Ed .2d 179 ) (1973 ) , there may cases in which such a construction, even though attempted, may_ be impossible. Under! 1 8 the facts alleged in the complaint, the plaintiff has standings, to assert that this statute presents such a situation. The ;I 9 plaintiff has standing as to this issue : to wit, whether the �'I I statute is unconstitutional on its face and could not be 10 rendered constitutional any decision of the Florida Supreme: ;\ Court. " (Emphasis added ) . i 11 I 12 In short, the federal court has jurisdiction to decide the 1 . 'I 18 question of jurisdiction. U.S. v. United Mine Workers of America, 1I 1! 14 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed . 884 (1974 ) . Where a state � ', 16 statute is susceptible to a construction which will render the ' 16 statute constitutional, the federal court must find that it has no 17 'urisdiction to proceed further, and must allow the matter to 1 18 return to the state court system for an authoritative construction 19 by the state court. This result is mandated by the fact that a 1 20 federal court lacks jurisdiction to authoritatively construe state I 1 21 le. islation. U.S. v. Thirty-Seven Photographs, 402 U .S. 363 , 28 22 L.Ed.2d 822, 91 S.Ct.. 1400 (1971 ) . See Stecher v. Askew, supra, at' ,I 28 999, where the court correctly stated: . ' 24 "In determining whether plaintiff has succeeded at this task, I . we 'must take the statute as though it read precisely as the 26 highest court of the State has interpreted it. ' Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 273 , 60 S.Ct. 26 523, 525, 84 L.Ed. 744 (1940 ) . Furthermore, 'we lack I jurisdiction authoritatively to construe state legislation. " 27 United States v. Thirty-Seven Photographs, 402 U.S. 363 , 369 , 91 S.Ct. 1400 , 28 L.Ed. 2d 822 (1971 ) . " I28 ' 1 I 29 • For the plaintiffs to succeed in this Court, they must • i 80' successfully demonstrate that no further interpretation could bring 81 . the city ordinance under question within the confines of the 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C.P..R.C.P. WARREN ae KELLOGG. P.S. O SECTION 12(b) (1 ) AND 12 (b) (6 ) P. 7 Ioo so.SECOND AT LAW ST..P.O.■ox•a• RENTON. WASHINGTON 9E057 255.ae7E • ' • • I . 1 protections insured by. the Constitution. If there is any saving 2 interpretation which the state court could make , plaintiffs must �! 8 demonstrate that the state courts will not so construe it. As the I 4 Court said in Stecher, supra, at page 999 : 5 "For the plaintiff to succeed in this Court, he must successfully demonstrate that no further interpretation could 6 bring this statute within the confines of the tests set out in. Chaplinsky. In subsequent proceedings under this statute , 7 however, there is absolutely no obstacle to the Florida courts' further defining the words 'Necessarily incite a 8 breach of the peace' which were incorporated into this statute) by State v. Mayhew, 288 So. 2d 243 (Fla. 1973 ) , as meaning 9 'words likely to cause an average addressee to fight. ' Such construction would save the statute , and the plaintiff cannot 10 demonstrate that the Florida courts will not so construe it." (our emphasis. ) 11 12 While it is true that a state defendant may consent to have 18 the federal court make that determination, see Ohio Bureau of 14 Employment Services v. Hodory, 431 U.S. 471 , 480 , that is not the 15 case here where the City of Renton has elected to have the matter 16 decided by the state court. ' 17 B. The State Judiciary Must Be Presented With An Opportunity 18 To Consider And Interpret The State Statute And If Necessary, 19 Invoke A Limiting Construction. 20 The rationale which requires a federal court to defer to the 21 state court in the instance of the first interpretation is clear. 22 There is a marked difference in the way in which the state and 28 federal courts approach the constitutional issue regarding state 24 legislation. Largely because of the doctrine of separation of 25 powers, the rule has evolved that state courts are obliged to . ' 26 render a construction of state legislation which will arrive at a 27 constitutional result. In People ex rel. Busch v. Projection Room 28 Theater, 17 Ca1.3d 55 at 56, the California Supreme Court noted , in 29 this context, at page 336: 80 "Furthermore, the United States Supreme Court recently emphasized within the foregoing context that courts have an 81 obligation to construe statutes in such a way as to avoid 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C.P. WARREN & KELLOGG. P.S. ATTORNEYt AT LAW SECTION 12 (b) (1) AND 12 (b) (6 ) P. 8 100.O.SECOND WT..r.O.•OX•_• RENTON. WASHINGTON 98057 255-8678 • • 1 - serious constitutional doubts . . . " (Our emphasis. ) 2 and, at page 338: j "We are obliged to construe and interpret legislation. in $ a manner which will uphold its validity. (Citations ) . Thus, 4 the courts have held that provision for a prior adversary hearing may be implied by law in otherwise silent statutory 6 provisions. " 6 Because federal courts do not bear the same relationship to state 7 legislatures and don' t function in the same manner as regards state! ' 8 legislation, see U.S . v. 37 Photographs, supra, the end result is 9. certain to differ. 10 That this Court should allow• the Washington State courts the 11 .pportunity to construe the ordinance and , if necessary, to invoke 12 a limiting construction is clear. In Erznoznik v. City of 18 Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed. 2d- 125 (1975 ) , 14 the Supreme Court, in disposing of a challenge to a city ordinance 16 regulating the types of movies that could be shown by a drive-in • 16 theater whose screen was visible from the public streets, made the 17 following observation: 18 "This Court has long recognized that a demonstrably over-broad statute or ordinance may deter the legitimate exercise of 19 First Amendment rights. Nonetheless., when considering a facial challenge it is necessary to proceed with caution and 20 restraint, as- invalidation may result in unnecessary interference with a state regulatory program. In 21 accommodating these competing interest the Court has held that a state statute should not be deemed facially invalid unless 22 it is not readily subject to a narrowing construction the state courts, see Dombrowski v. Pfister, 380 U .S. 479, 497 , 85' 23 S .Ct. 1118, 1126, 14 L.Ed. 2d 22 (1965 ) . . Of 422 U .S. at 216, 95 S.Ct. at 2276. In Time, Inc. v. Hill, 385 U.S. 374 , 87 24 S .Ct. '534 , 17 L.Ed. 2d 456 (1967 ) , the Court refused to declare a New York privacy statute invalid on its face, noting that 26 the New York courts had 'been assiduous in construing -the statute to avoid invasion of the constitutional protections of 26 speech and press. We, therefore, confidently expect that the New York courts will apply the statute consistently with the . 27 constitutional command . ' Id . at 297, 87 S.Ct. at 547. " (Emphasis added ) . 28 29 As was stated byJustice Burger in Tilton v. Richardson, 403 U.S. 80 . 672 at 684 on the issue of "severability" and the importance of the 81 statutory construction factor: 82 • MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION TO • WARREN Ct KELLOGG, P.S. DISMISS COMPLAINT PURSUANT TO F.R.C.P. ATTORNEYS AT LAW SECTION 12 (b) (1) AND 12 (b) (6 ) P. 9 'oo So.SECOND ST..P.O.SOX IBIS RENTON. WASHINGTON 98057 ass-s578 • • • "This circumstance does not require us to invalidate the 1 entire Act, however. 'The cardinal principle of statutory 2 construction is to save and not to destroy. ' N. L.R.B_. v. Jones &. Laughlin Steel Corp., 301 U.S. 1, 30 , 81 L.Ed . 893 , 8 907, 57 S.Ct. 615, 108 ALR 1352 (1937 ) . In Champlin Rfg. Co. v. Commission, 286 U.S. 210, 234, 76 L.Ed. 1062 , 1078 , 52 4 S .Ct. 559, 86 ALR 403 (1932 ) , the Court noted 'The unconstitutionality of a part of an Act does not necessarily 6 defeat . . . the validity of its remaining provisions. Unless it. is evident that the legislature would not have enacted 6 those provisions which are within its power, independently of ' that which is not, the invalid part may be dropped if what is 7 left is fully operative as law. ' Nor does the absence of an express severability provision in the Act dictate the demise 8 of the entire statute. E.g. , United States v. Jackson, 390 Ij U.S. 570, 585 n. 27, 20 L.Ed. 2d 138, 148, 88 S.Ct. 1209 II 9 (1968 ) . " 10 Even were this court to find. that certain parts of City of 11 Renton Ordinance No. 3526 were unconstitutional on their face, the II 12 issue as to whether such parts were severable would still have to ! 18 be decided . See, generally, Sutherland Statutory Construction , 14 "Severability" , Chapter 44 at page 335-368 and O'Connell v. Conte, , 16 456 P. 2d 317 (Wash. 1969 ) . That issue is more properly a matter 16 for the state court. In a recent statement confirming the 17 importance of the "statutory construction" factor and the right of 18 state courts to interpret city ordinances, the U.S. Supreme Court 19 in Metromedia, Inc. v. San Diego, U.S. , 69 L.Ed . 2d 800 20 (July 2, 1981 ) ( involving an appeal of a city ordinance after ' 21 decision by the California Supreme Court) remanded the case back to 22 the California Supreme Court for further statutory construction by 28 the state court, notwithstanding it held the ordinance to be 24 unconstitutional on its face . See in this regard , Justice White ' s 25 opinion announcing the judgment of the Court at page 823, fn. 26, 11 26 wherein he addresses the issue of severability and the right of 27 state courts in that regard: 28 "Although the ordinance contains a severability clause, , determining the meaning and application of that clause are 29 properly responsibilities of the state courts. See Dombrowski v. Pfister, 380 U.S. 479, 497, 14 L.Ed. 2d 22, 85 S.Ct. 1116 80 (1965 ) ( 'The record suffices . . . to permit this Court to hold that, without the benefit of limiting construction, the 81 statutory provisions on which the indictments are founded are, 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C.P.. WARREN & KELLOGG. P.S. ATTORNEYS AT LAW SECTION 12 (b) (1 ) AND 12 (b) (6 ) P. 10 too SO.SECOND ST..P.O.■ox eft• RENTON. WASHINOTON 95057 258-8878 I • I r I 1 void on their face; until an acceptable limiting construction is obtained , the provisions cannot be applied . ' ) ; Liggett Co. I 2 v. Lee, 288 U.S. 517, 541 , 77 L.Ed. 929 , 53 S.Ct. 481 , 85 ALR 1 699 ( 1933 ) ( 'The operation of this [severability clause] 1 8 consequent on our decision is a matter of. state law. While we . have jurisdiction of the issue, we deem it appropriate that we ! 4 should leave the determination of the question to the state court. ' ) ; Dorch v. Kansas, 264 U.S. 286 , 291 , 68 L.Ed . 686 , I 5 44. S.Ct. 323 ( In cases coming from the state courts, this Court, i'n the absence of .a controlling state decision may , in 6 passing upon the claim under the federal law, decide , also the question of severability. But is is not obliged to do so. 7 The situation may be such as to make it appropriate to leave , the determination of the question to the state court. ' ) . This ; I 8 rule is reflected in the different approaches this Court has I ! taken to statutory construction of federal and state statutes 9 infringing on protected speech. Compare United States v. Thirty-Seven Photographs, 402 U.S. 363 , 28 L.Ed . 2d 822 , 91 10 S.Ct. 1400 ( 1971 ) , with Freedman v. Maryland, 380 U .S. 51 , 60 , 13 L.Ed. 2d 649 , 85 S.Ct. 734 (1965 ) . Since our judgment is 11 based essentially .on the inclusion of noncommercial speech within the prohibitions of the ordinance, the California i 12 courts may. sustain the ordinance by limiting its reach to commercial speech, assuming the ordinance is suceptible to I 18 this treatment. " ii II . t 14 15 1 THE BASIC PRINCIPLES OF FEDERALISM AND COMITY it EXPRESSED IN HUFFMAN V. PURSUE LTD. , AND 16 SUBSEQUENT CASES REQUIRE THAT WHERE THE ISSUE INVOLVES CIVIL INTERESTS RELATING TO STATE , 17 SOVEREIGNTY, SUCH AS THE ZONING POWER HEREIN ! INVOLVED, THE FEDERAL CLAIM MUST BE PRESENTED � i 18 TO THE STATE FORUM IN THE FIRST INSTANCE IF i THAT FORUM IS AVAILABLE AND THE STATE 'S 11TH. 19 AMENDMENT PRIVILEGE HAS NOT BEEN WAIVED. I I 20 When the need for abstention in civil public nuisance 21 abatement litigation was before the Court seven years ago in I 1 22 Huffman v. Pursue Ltd. , 420 U.S. 592 , 43 L.Ed. 2d 482 , 95 S.Ct. 1200 I 28 (Mar. 18, 1975 ) the Allen County, Ohio Prosecutor argued that the l 24 U.S. District Court lacked jurisdiction and was required to dismiss] 25 the Civil Rights Action. The High Court' s order in Huffman, supra, ' 26 on the jurisdictional issue was equivocal, at pg. 612 : I I � 27 " . . .We therefore think that this case is appropriate for 1 remand so that the District Court'may consider whether. . . the: 28 District Court may assume jurisdiction under an exception to th aol p cy against federal judicial interference with state ; I 29 court proceedings of this kind. " (Our emphasis. ) ii 80 Upon remand , and over the prosecutor' s objection, U.S. District I I 81 Judge Walinski dismissed the case on the ground of mootness, and ,I 82 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS ' MOTION TO WARREN & KELLOGG. P.S. DISMISS COMPLAINT PURSUANT TO F.R.C.P. ATTORNEYS AT LAW SECTION 12 (b) (1) AND 12 (b) ( 6 ) P. 11 too SO.SECOND ST..P.O.SOX GIS 1 i RENTON. WASHINGTON 96057 155.6678 1 i i I i I • ..I I . • . 1 the basic question of jurisdiction was never resolved . I 2 During the 197,6 October Term, Huffman v. Pursue Ltd. , supra, 8 was further applied by the U.S. Supreme Court in other civil cases: 4 Judice v. Vail, 430 U.S. 327, 51 L.Ed.2d 376 , 97 S.Ct. 1211 (Mar. I 5 22, 1977 ) and Trainor v. Hernandez , 431 U.S. 434 , 52 L.Ed. 2d 486 , 1 1 6 496, 97 S.Ct. 1911 (May. 31 , 1977) and distinguished in Ohio Bureau 1 . I 7 of Employment Services v. Hodory, supra. In his dissent in Judice, 8 Justice Stewart noted a significant difference between Pullman I9 abstention and Younger-Huffman abstention, at . pg. 348 : 10 " . . .Both types of 'abstention' of course, serve the Icommon goal of judicial restraint as a means of avoiding undue I 11 federal interference with state goals and functions. But Ii there is •a significant difference in result between the two. 32 Under Pullman abstention, the federal court may retain j urisdi,ction pending state-court interpretation of an i 18 ambiguous statute, while under Younger it may not. " (Our I emphasis. )' 14 . I 16 See also Trainor v. Hernandez,. 431 U.S. 434, 445, 52 L.Ed.. 2d 486 , I * . I 16 496, 97 S.Ct. 1911 (May 31, 1977 ) and Moore v. Sims, 442 U.S. 415 , 1 17 430, 60 L.Ed.2d 994. 1007, 99 S.Ct. 2371 (June 11 , 1979 ) , citing i 18 the Trainer v. Hernandez text noted above , in holding that the 1 I 19 In Trainor v. Hernandez, supra, the High Court held that where Huffman v. I Pursue Ltd. applies, the Court should dismiss the case: I 20 "...For a federal court to proceed with its case rather than to remit I 1 appellees to their remedies in a pending state enforcement suit would 21 confront the State with a choice of engaging in duplicative litigation, thereby risking a temporary federal injunction, or of interrupting its 22 enforcement proceedings pending decision of the federal court at some unknown time in the future. It would also foreclose the opportunity of the I 28 state court to construe the challenged statute in the face of the actual federal constitutional challenges that would also be pending for decision I 24 before it, a privilege not wholly shared by the federal courts. Of course, in the case before us the state statute was invalidated and a federal 25 injunction prohibited state officers from using or enforcing the attachment II statute for any purpose. The eviscerating impact on many state enforcement 26 actions is readily apparent. This disruption of suits by the State in its sovereign capacity, when combined with the negative reflection on the 27 State's ability to adjudicate federal claims that occurs whenever a federal Icourt enjoins a pending state proceeding, leads us to the conclusion that 28 the interests of comity and federalism on which Younger and Samuels v. Mackell primarily rest apply in full force here. The pendency of the state I . 29 court action called for 'restraint by the federal court and for the 1 dismissal of .appellees' complaint unless extradordinary circumstances were 80 present warranting federal interference or unless their state remedies were ' inadequate' to litigate their federal due process claim.". (Our emphasis. ) 81 I 82 MEMORANDUM OF POINTS AND AUTHORITIES I IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C.P. WARREN & KELLOGG. P.s.• ATTORNEYS AT LAW 1 SECTION 12 (b) (1) AND 12 (b) (6) P. 12 100 SO.SECOND ST..P.O.SOX SIG RENTON. WASNINOTON 98057 • • I 1 • I II II 1 . • I j1 principles of Younger-Huffman acted • as a bar. i 2 While the language of the Court in Huffman v. Pursue, Ltd. , I 8 supra, Judice v. Vail, supra, Trainer v. Hernandez , supra , and 4 Moore v. Sims, supra, does not specifically hold that federal • j 5 "jurisdiction" is in question, that appears• to be at the very core . 6 of the problem. If not, what would be the reason for 7 distinguishing between Pullman abstention and Younger-Huffman I 8 abstention? That a federal court lacks "jurisdiction" in. matters involving ! 9 10 state sovereignty, where the trial facts show that the , ! constitutional claim can be raised and fully litigated in a civil 1 12 action in the state court finds support in the rationale expressed ! 18 in Allen v. McCurry, U.S. , 66 L.Ed. 2d 308 , 101 S.Ct. , 14 (Dec. 9, 1980 ) . In Allen et al. v. McCurry, supra, a majority of 15 the U.S. Supreme Court had occasion to rethink the legislative I rationale which authorized federal jurisdiction in Civil J I 16 intent and 17 Rights cases, (42 U.S.C. section 1983 ) . In that decision, the 1 18 majority made it clear that, except where the claim was made that a I 19 state statute was unconstitutional on its face, it was not intended 20 by Congress that the federal courts should have jurisdiction over a , I1 21 federal cause of action where the state courts stand ready and 22 willing and were available (as here) to allow full litigation of 28 the constitutional claim, See Allen et al. v. McCurry, supra, at 1 24 page 317: 11 I 25 " . . .To the extent that it did intend to change the Ibalance of power over federal questions between the state and it 26 federal courts, the 42d Congress was acting in a way II thoroughly consistent with the doctrines of preclusion. In I I ! 27 reviewing the legislative history of § 1983 in Monroe v. Pape, supra, the Court inferred that Congress had intended a federal 28 remedy in three circumstances: where state substantive law was facially unconstitutional, where state procedural law was • 29 inadequate to allow full litigation' of a constitutional claim,, and where state procedural law, though adequate in theory, was I 80 inadequate in practice. 365 U.S. at 173-174 . In short, the 1 . federal courts could step in where the state courts were II 81 unable or unwilling to protect federal rig th s. Id . , at 176 . " i 82 MEMORANDUM OF POINTS AND AUTHORITIES I IN SUPPORT OF DEFENDANTS' MOTION TO ! DISMISS COMPLAINT PURSUANT TO F.R.C.P. WARREN & KELLOGG, P.S. I ATTORNEYS AT LAW SECTION 12 (b) (1 ) AND 12 (b) (6 ). P. 13 - +OO.O•SECOND ST..P.O.SOX SIC RENTON. WASHINGTON 05057 1111 I 255-567e 1 I 1 I I li ! j II I 1 • I . I 1 1 (Our emphasis. ) 2 See also, Patsy v. Florida International University, et al. , 634 F.2d 900, at 910-912, cert. granted on October 5 , 1981 , and 1 4 argument in the U.S. Supreme Court set for the week of March 1, 1982. In other words, it can no longer be claimed that every i . ; . 6 person asserting a federal right is entitled to one unencumbered 1 7 •pportunity to litigate that right in a federal district court, at I 8 rage 319: 1 9 " . . .The actual basis of the Court of Appeals ' holding appears to be a generally framed principle that every person 10 asserting a federal right is entitled to one unencumbered I opportunity to litigate that right in a federal district 11 court, regardless of the legal posture in which the federal claim arises. But the authority for this principle is 12 difficult to discern. It cannot lie in the Constitution, which makes no such guarantee, but leaves the scope of the 18 jurisdiction of the federal district courts to the wisdom of Congress. And no such authority is to be found in § 1983 ' 14 itself. " (Our emphasis. ) I 16 It would seem, therefore, that the constitutional rule must i 16 evolve that, as to the federal civil rights claims herein which do 17 not qualify under the exception of Huffman, supra, and which . 18 interfere with the zoning power and the sovereign right of a state I 19 to litigate zoning matters in its own judicial system, the party I ' I20 must first assert the federal claim in a state action , and it is 21 irrelevant in this case that Playtime and Kukio jumped the gun and I '1 r I 22 filed their declaratory judgment in the federal district court. i 1 28 Accordingly, a federal court would not have jurisdiction to I . 24 hear a federal declaratory judgment action unless and until the II I 25 state has waived its privilege under the llth Amendment, Hans v. it I- 26 Louisiana, supra; Ohio Bureau of Employment v. Hodory, supra; Moorei/ 27 v. Sims, supra, at 429, 60 L.Ed.2a at 1007; Samuels v. Mackell, 4011 II28 U.S, 66, 27 L.Ed. 2d 688, 91 S.Ct. 764 , inasmuch. as Playtime and II 29 Kukio have an adequate due process remedy in the state court. j 80 /// /// /// 1 1 81 /// /// • ///I I 82 MEMORANDUM OF POINTS AND AUTHORITIES 11 1 IN SUPPORT OF DEFENDANTS' MOTION TO WARREN'ac KELLOGG. P.S. I DISMISS COMPLAINT PURSUANT TO F.R.C.P. ATTOIINETS AT LAW • SECTION 12(b) (1) AND 12 (b) (6) P. l 4 100 So.SECOND ST..P.O.NOR e*S 1 RENTON. WASHINGTON 98057 • 155.567e I II 1 I •II 1 H , 1 I ` I i - 1 III i 2 HAVING FAILED TO EXHAUST THEIR ADMINISTRATIVE REMEDY IN THE STATE ZONING PROCESS, PLAYTIME 8 AND KUKIO MAY NOT RELY UPON A "STRAWMAN" I 4 CONSTRUCTED UPON AN ERRONEOUS ZONING INTERPRETATION, AS A BASIS FOR FEDERAL 1 .i 5 JURISDICTION. 6 In what appears to be an attempt to bring themselves within I 7 the favorable rule of law expressed in some recent decisions I I 8 restricting the use of conditional use permit type zoning i_ 9 legislation for adult book stores, see City of Imperial Beach v. 1 10 Palm Avenue Books, 115 Cal.App. 3d 134 , 171 Cal.Rptr. 197 and Ebel I 11 v. City of Garden Grove, 120 Cal.App. 3d 399, 176 Cal .Rptr. 312 . 12 Playtime and Kukio. have urged in their amended complaint that City jl , I ' 18 of Renton Ordinance No. 3526 provides a new use classification I 14 which is not a permitted use within any zoning classification 1 I 15 currently in the City of Renton, thereby requiring them to obtain . a 16 special permit, conditional use or variance prior to commencement I 17 of such use. That interpretation is contrary to the well 18 publicized administrative view of the City of Renton that an "adult / I I 19 movie picture theater" is a permitted use within the B-1 , and more 20 intensive land use zoning classifications currently in use within I 21 the City of Renton except to the extent that the specific use is Ii 22 prohibited by the terms of said ordinance, and that there is no Ill II 1!1 23 necessity for application for a special permit, conditional use orli 24 variance prior to the commencement of such specific land use . I I25 Having failed to exercise their administrative remedy which is I I26 available to them in the state zoning process , Playtime and Kukio '1 27 are concluded from urging that principle as a basis of federal I Florida28 jurisdiction under the well reasoned case of Patsy v. II I 29 International Univ. , 634 F. 2d 900 , cert. granted by the U.S. 1 1 80 Supreme Court and argument schedualed for March 1, 1982 . I I 81 Under its analysis in Patsy, supra, the Fifth Circuit, sittiilg 1 82 MEMORANDUM OF POINTS AND AUTHORITIES I I IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C.P. WARREN & KELLOGG. P.S.ATTOIINETS AT LAW 11 SECTION 12 (b) (1 ). AND 12 (b) (6 ) P. 15 100 SO.SECOND ST..P.O.SOX SAS RENTON, WAANINGTON 98057 it I 255.e678 1 I 11 I II I li H . I I 11 I • , I • I I. , I 1 en bane, concluded that the Supreme Court cases upon exhaustion of I 2 administrative procedures merely condemn a "wooden application" of I • 8 the exhaustion requirement in section 1983 cases . See also, Patsy, I I 4 supra, at page 909 where the Court concludes that the "Ninth I 6 Circuit 'has not gone so far' as to infer a blanket no - exhaustion -. i 6 under - any - circumstances rule from the Supreme Court cases . 7 Canton v. Spokane School District #18 , 498 F. 2'd 840 , 844 (9th Cir. , 1 1 8 1974)" . 9 Dismissal of this cause of action will not be a "wooden I 10 application" of the exhaustion requirement in section 1983 cases . :I , I 11 Here Playtime and Kukio create their own "strawman" by attempting I 12 to impose upon the Defendants a construction of the Defendant' s own • 18 zoning code which is contrary to the construction placed upon the I 14, zoning code by the City as evidenced by the allegations of the 1 1 15 Complaint for Declaratory Judgment under R.C.W. Chapter 7 . 24 filed 16 in the King County, Washington, Superior Court. This Court can ,I I 17 take judicial notice of such construction based upon that pleading. I) , I 18 Plaintiffs ought to have sought a construction by the appropriate I I 19 administrative authority of the City pursuant to the provisions of I 80 the zoning code of the City of Renton, or in the alternative , should ;II 1 21 have sought the jurisdiction of the state court to obtain a construc- I 22 tion of the provisions of this zoning ordinance . • I 28 CONCLUSION I 24 Because of .the pending action in the state court, the federal 1 • 25 complaint should be dismissed for failure to state a claim upon I 1 • 26 which federal relief can be based, upon abstention grounds , and for I I27 lack of jurisdiction to decide the controversy which has been pleaded. 28 DATED: February 22 , 1982 . 11 29- c11 $Q DANI KE LLO GG �' I of Warren. 6 Kellogg, .S. 81• • Attorneys for Defendants I 82' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS COMPLAINT PURSUANT TO F.R.C.P. WARREN & KELLOGG. P.S. SECTION 12(b) (1) AND 12(b) (6) P . 16 boo i«oN°SST.AT LAW OX SU I RLNTON. WASHINGTON 98087 I =es.ee7e I I t i I II I il , V .7 P. 2 2, . • • ; ° 1 i • pHILIP K. SWEIGERT .L") .-"" U.S. MAGISTRATE i EIB 2 2: 1982 PIALI . • ' • 3 U. S. DISTRICT JUDGE ' • 4 5 • HI 6 UNITED STATES DISTRICT COURT 7 . FOR THE WESTERN DISTRICT OF WASHINGTON 8 PLAYTIME THEATRES, INC. , a ) 9 Washington corporation, and ) KUKIO BAY PROPERTIES, INC. , ) NO . C82-59M 10 a Washington corporation, ) ) 11 Plaintiff ) NOTICE OF MOTION FOR HEARING ) MOTION TO DISMISS BEFORE 12 vs ) DISTRICT COURT JUDGE • ) . 13 THE CITY OF RENTON, a ) municipal corporation, . ) 14 ) Defendants. )15 ) . 16 PLEASE TAKE NOTICE that Defendants ' Motion to set motion 17 to dismiss before United States District Court Judge Walter T. 18 McGovern will be brought on for hearing on March 12, 1982 at 19 9 : 30 A.M. or at such other time as the courtmay hereinafter 20 direct. 21 This Motion is made in conjunction with Dfendants ' 22 Motion to Dismiss . 23 DATED: February 22, 1982 . 24 25 26 Daniel Kellogg, Att rne r , Plaintiff 27 • 28 29 . 30 • . 31 • NOTICE OF MOTION FOR HEARING TO 32 DISMISS BEFORE DISTRICT COURT JUDGE WARREN & KELLOGG. ATTORNEYS AT LAW • 100 SO.SECOND Sr..P.O.BO RENTON. WASHINGTON 98, 255-8878 I RECEIVED . 2 2 198z P1 `>,VEIG ' 1 tviC u�1V`; C.S. 1,..ii.I;,�TRATT I' 2 S. L�iSTR(C"f, JUDGE ' !1 I 3 '. .: i 4 5 6 • UNITED STATES DISTRICT COURT I7 FOR THE WESTERN DISTRICT OF WASHINGTON PLAYTIME THEATRES, INC. , a 8 ) IRCRIV D Washington corporation, and 9 KUKIO BAY PROPERTIES, INC. , a ) Washington corporation, ) C82-591M ' 10 Plaintiffs ) PHIL1 p K. SII'E1 ' , DEFENDANTS' MOTION O GE,R 11 ) HEARING OF MOTION TO T.,MrATIPATE v. ) COMPLAINT BEFORE DISTRICT 12 CITY OF RENTON, a municipal ) COURT JUDGE 13 corporation, et al. , ) 14 Defendants . ) • . ) i15 COME NOW the Defendants and move the Court for an order 16 setting Defendants Motion to Dismiss Complaint, dated 17 February 22, 1982, before United States District Court Chief 18 Judge Walter T. McGovern. 19 By order of reference, depositive motions herein have 20 been referred to U. S. Magistrate Phillip K. Sweigert. 21 Dated: ;Z-401.0,..44...4.4.0, 22,�82. 22 23 c 24 • Daniel Kellogg, j .� I gg, Attl rne; Defendants 25 .61 26 . 27 I 28 I 29 I30 31 DEFENDANTS MOTION FOR HEARING OF MOTION TO DISMISS COMPLAINT BEFORE DISTRICT 32 COURT JUDGE WARREN & KELLOGG. - I ATTORNEYS AT LAW fOO SO.SECOND ST..P.O.SOX .. RENTON. WASHINGTON 980. 253.8678 I • RECEIVED l'IaILII' K. SWEIGERT . 2 �� U.S. MAGISTRATE II 1 ,ru.... s L_s\ I. tVIC UV i. 2 U. S. DISTRICT JUDGE r 3 j 4 • I 5 , 6 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON RECEIVED 7 8 PLAYTIME THEATRES, INC. , a ) ` "�' Washington corporation, and ) PHILIP K. SWEIGERT 9 KUKIO . BAY PROPERTIES , INC. , ) NO. C82-59M u.s. MAGISTRATE a Washington corporation, ) 10 ) . . Plaintiffs ) ORDER TO HEAR MOTION TO • j 11 • ) DISMISS COMPLAINT BEFORE vs ) DISTRICT COURT JUDGE 12 CITY OF RENTON, a municipal ) • Ili .13 corporation, et al. , ) ) 14 Defendants . ) 15 ) THIS MATTER having come on regularly for hearing upon the 16 Defendants motion to set a hearing upon defendants motion to 17 II dismiss before United States District Court Judge, Walter T. 18 II 19 McGovern, and the court having considered the files and records herein and being fully advised in the matter, it is 20 ORDERED as follows : 21 I 1 . Defendants motion to dismiss complaint pursuant 22. II 23 to F.R. C.P. 12(b) (1) and 12(b) (6) is set for hearing before II 24 United States District Court Judge, Walter T. McGovern on II 25 March 12, 1982 at 9: 30 A.M. or at such other time as the court 26 may direct. 27 Dated: i III 28 I . 29 II Walter T. McGovern II District Court Judge • •j 30 31 , 32 ORDER I WARREN & KELLOGG. P.S. ' ATTORNEYS AT LAW 100 SO.SECOND ST.,P.O.COX SRO RENTON. WASHINGTON 98057 255.8078 • ilI • . • RECEIVED •E{ 2 21982 ., �. < 1 1'11 ► , I--II � Lt.( �'liC , iti;. Z.J.g, I;• SW ICE 2 U. S. r LI.q 1 1 R T DISTRICT Odin:_.._ G ��SATE 3 4 5 • 6 UNITED STATES DISTRICT COURT' FOR THE WESTERN DISTRICT OF WASHINGTON 7 PLAYTIME THEATRES, INC . , a ) 8 Washington corporation, and ) KUKIO BAY PROPERTIES, INC. , ) 9 a Washington corporation, ) NO • C82-59M ) NOTICE OF APPLICATION FOR 10 Plaintiffs ) PERMISSION TO PARTICIPATE 11 vs ) ) 12 CITY OF RENTON, a municipal ) corporation, et al . ) 13 ) Defendants . ) 14 ) 15 PLEASE TAKE NOTICE that Defendants Application for 16 Permission to Participate will be brought on for hearing 17 on March 12, 1982 at 9 : 30 A.M. or at such other time as the 18 court may hereinafter direct. 19 DATED: February 22, 1982 20 21 / 22 Danie Kellogg 23 24 25 26 27 28 29 30 31 . 32 NOTICE OF APPLICATION FOR PERMISSION TO PARTICIPATE WARREN & KELLOGG, ATTORNEYS AT LAW • 100 SO.SECOND ST..P.O.BOX RENTON. WASHINGTON 980 235-8678 I ' II • RECEIVED 1 . 1. 2 F• 198°L twiL, L. i1GE� il.b. rvI.4cI,TRArp, T , l Lt I . rw,:u�; . 2 S. DISTRICT 3 ' 4 . 5 6 ' 7 8 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON , • 9 10PLAYTIME THEATRES , INC. , a ). Washington corporation, and ) 11KUKI0 BAY PROPERTIES , INC. , ) a Washington corporation, ) . NO,. C82-0059M 12 ) . . Plaintiffs , ) -.13 • ) vs . ) APPLICATI(?'= • 14 ) PERMISSI.0NL�TOR . THE CITY OF RENTON, et al . , ) -1ARTICIPATE 15 ) Defendants . ) 16 - ' 17 COME NOW the Defendants • by. their counsel of record, and lanove the Court for permi ,sion to allow JAMES J. CLANCY to participate I 19as counsel in this matter in association with WARREN & KELLOGG, P . S . ; 20attorneys of record for Defendants , and represent as follows : 21 1. MR. CLANCY is admitted to practice before the Supreme r 2ourt of the United States . ; 23 ' 2. MR. CLANCY neither resides nor maintains an office for 24the practice of law in the Western District of Washington. ' 25 3 . MR. CLANCY shall be joined in appearance and participation I 261:lerein by 'LAWRENCE J. WARREN, DANIEL KELLOGG, MARK E. BARBER and, 27DAVID M. DEAN, of Warren & Kellogg,gg, P . S . , Attorneys of record for 28Defendants , all of whom maintain offices for the practice of law 29and are admitted to practice before this Court , and who shall sign 30all pleadings prior to filing and otherwise comply with CR 10(e) . 31 4. MR. CLANCY has limited his practice to principally matters 32relating to litigation of First Amendment rights , and claims i WARREN & KELLOGG, P.S. APPLICATION TO PARTICIPATE - 1 um SOATTORNEYS AT LAW i .SECOND ST..P.O.SOX E!S RENTON. WASHINGTON 98067 29D-8678 I I. I 1 1 y ` ` 1 relating thereto , and as a consequence, has acquired an expertis 2shared by few people. MR. CLANCY has represented other municipa 3corporations involving claims similar to those herein. 4 5. MR. CLANCY understands that he is charged with knowledg 5of and compliance with all applicable local rules . 6 6. MR. CLANCY has not been disbarred or formally censured ?by a Court of record or by a state bar association. There are n 8pendipg disciplinary proceedings against MR. CLANCY. 9 7. The undersigned attorney for the Defendants represents 10that he is authorized and will be prepared to handle the matter, llincluding the trial thereof, in the event MR. CLANCY is unable 12to be present upon any date assigned by the Court . ..13 WHEREFORE , the Defendants pray that the Court grant leave 14for JAMES J. CLANCY to participate in this case as counsel for 15Defendants in association with Warren & Kellogg, P. S . , attorneys 16of record for Defendants . 17 DATED: February 19 , 1982. 18 • 19 * DANI LLOGG �� 20 of Warren & Kello• : , 21 Attorneys for Defendants 22 ' 23 24 25 26 27 28 29 30 31 32 APPLICATION TO PARTICPATE - 2 WARREN & KELLocG, P.S. ATTORNEYS AT LAW 100 SO.SECOND ST..P.O.SOX II. RENTON. WASHINGTON 98087 255.8878 Y y, RECEIVED , Z `� i9S� PI3ILIP Imo. SW7EIGERT U.S.. MAGISTRATE 2 `_I. S. DISTRICT JUDGE . 3 4 5 6 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 7 PLAYTIME THEATRES, INC. , a ) 8 Washington corporation, , and ) KUKIO BAY PROPERTIES, INC. , ) 9 a Washington corporation, ) NO. C82-59M 10 Plaintiffs , ) 11 vs ) ORDER GRANTING LEAVE TO ) PARTICIPATE 12 CITY OF RENTON, a municipal ) corporation, et al. ) 13. ) Defendants . ) 14 ) 15 THIS MATTER having come on regularly upon the Defendants 16 Application for Permission to allow JAMES J. CLANCY to 17 participate as counsel in this matter in association with 18 Warren & Kellogg, P. S. , attorneys of record for Defendants , 19 and it appearing that the application complies with General 20 Rule 2(d) of the Local Rules for the Western District of 21 Washington, and the court having considered the records and 22 files herein and being fully advised in this matter, it is 23 hereby ORDERED as follows : 24 1 .: Leave is granted for JAMES J. CLANCY to participate 25 in this case as counselfor defendants in association with 26 Warren & Kellogg, P. S . , attorneys for Defendants . 27i Dated: . . . . . . 28 j'Jalter T. McGovern 29 District Court Judge 30 . 31 32 ORDER • WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO.SECOND ST..P.O.SOX e2e RENTON. WASHINGTON 98057 255-8678 _ - • RECEIVED • f •U 2} r 1C;•". 1'IIL.I:' I;. S`yEIGERa. 17 2 1982 U.S. MAGISTRATE 2 r t. S. DISTRICT . 3 4 5 6 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 7 PLAYTIME THEATRES , INC. , a ) 8 Washington corporation, and ) KUKIO BAY PROPERTIES , INC. , N0. C82-59M 9 a Washington corporation, ) Plaintiff ) 10 CERTIFICATE OF SERVICE 11 vs .) CITY OF RENTON, a municipal ) 12 corporation, et al . ) :13 ) Defendants. ) ' 14 ) 15 - I certify that I served a copy of the following documents 16 on the parties to this action on February 22, 1982 : 17 1 . Notice of Motion to Dismiss • 18 2. Motion to Dismiss Complaint Pursuant to F.R.C.P. 12(b) (1) and 12(b) (6) 19 3. Memorandum of Points and Authorities in 20 Support of Defendants Motion to Dismiss Complaint 21 4. Notice of Motion for Hearing Motion to Dismiss 22 Before District Court Judge 23 5 . Defendants Motion for Hearing Motion to Dismiss Complaint Before District Court Judge 24 6. Order to Hear Motion to Dismiss Complaint Before 25 District Court Judge 26 7. Notice of Application for Permission to Participate 27 28 8 . Application for Permission to Participate 29 9. . Order Granting Leave to Participate 10. Letter to Judge McGovern and Magistrate Sweigert 30 dated February 22, 1982 31 11 . Designation of Person to Testify at Deposition 32 by mailing copies, postage prepaid, to them at the following CERTIFICATE 'OF SERVICE WARREN & KELLOGG. P.S. 13. 1 ATTORNEYS AT LAW 100 SO.SECOND ST..P.O.SOX SSS RENTON, WASHINGTON 96051 255.867e 1 • 1 address: 2 Jack R. Burns Hubbard, Burns' & Meyer 3 10604 N. E. 38th Place, Suite 105 Kirkland, Washington 98033 4 5 I certify under penalty of perjury that the foregoing 6 is true and correct. 7 Dated: February 22, 1982 I , 8 9 Danie Kellogg 10 11 12 13 14 15 16 17 18 19 20 21 • 22 23 24 25 . 26 • 27 28. 29 30 31 32 CERTIFICATE OF SERVICE . P. 2 WARREN & KELLOGG. P.S. ATTORNEYS AT LAW 100 SO.SECOND ST..P.O.®OE Ill RENTON. WASHINGTON 98057 255.5e78 I 7.4;' 1171-.1 -171 LR _.. .- • i..1„ 9 1932 r)y 1 1 2 . 3 4 5 6 7 8 • UNITED STATES DISTRICT COURT - 9 FOR THE WESTERN DISTRICT OF WASHINGTON 10 .PLAYTIME THEATRES , INC . , a ) Washington corporation, and KIJKI0 ) 11 BAY PROPERTIES , INC . , a Washington) corporation , ) NO. C82-59M 12 ) Plaintiffs , ) 13 vs . ) AMENDED AND SUPPLEMENTAL ) COMPLAINT FOR DECLARATORY 14 THE CITY OF RENTON, ) JUDGMENT AND PRELIMINARY ) AND PERMANENT INJUNCTION 15 and ) ) 16 THE HONORABLE BARBARA Y. SHINPOCH ;) as Mayor of the City of Renton , ) 17 ) and ) ) 18 EARL CLYMER, ROBERT HUGHES , NANCY ) 19 MATHEWS , JOHN REED, RANDY ROCKHILL) RICHARD STREDICKE AND TOM TRIMM, ) 20 as members of the City Council. of ) the City of Renton ; serve on: ) 21 DELORES H. MEAD, City Clerk, ) ) 22 ) • and ) 23 ) JIM BOURASA, as acting Chief of ) 24 Police of the City of Renton, ) ) • 25 ) . Defendants , jointly and ) 26 . severally, in their ) representative capacities ) • 27 only. ) 28 ) COME NOW Playtime Theatres Inc . and Kukio Bay Properties 29 Inc . , bodies corporate of the State of Washington , by and through. 30 their attorneys , Jack R. Burns and Robert Eugene Smith , of counsel , 31 • Amended and Supplemental ATTORNEYS ATLAW Complaint Hubbard, Burns & Meyer Page 1 A PROFESSIONAL.SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 • • • 1 and seek a declaratory judgment as well as a preliminary and 2 permanent injunction with respect to City of Renton Ordinance No . • 3 3526 entitled : "An Ordinance Of The City Of Renton, Washington , 4 Relating To Land Use and. Zoning; " enacted and approved by the Mayor 5 and City Council on or about the 13th day of April , • 1981 and in 6 support of their cause of action , state : 7 I . JURISDICTION • 8 1 . This is a civil action whereby plaintiffs pray for a 9 preliminary and permanent injunction enjoining the defendants from 10 enforcement of the City of Renton Ordinance No . 3526 , a copy of 11 which is attached hereto as Exhibit "A" in support of this 12 complaint , the contents of which are incorporated herein by 13 reference , on the grounds that said ordinance and the multiple 14 provisions thereof are unconstitutional as written , and/or as 15 threatened to be applied to the plaintiffs in the case at bar . 16 Further , plaintiffs pray for a declaratory judgment to determine 17 i the constitutionality of said Ordinance , as written and/or as 18 threatened to be applied to the plaintiffs . The allegations to be 19 set forth in the premises establish that there are presented 20 questions of actual controversy between the parties involving 21 substantial constitutional issues in that said ordinance , as 22 written and/or in its threatened application, is repugnant to the 23 rights of the plaintiffs herein under the First , Fourth, Fifth, 24 Sixth , and Fourteenth Amendments to the Constitution of the United 25 States . 26 2 . Jurisdiction is conferred on this court for the resolu- 27 tion of the substantial constitutional questions presented by the 28 • provisions of 28 USCA . §1131 (a) which provides in pertinent part : 29 (a) The district court shall have original 30 jurisdiction of all civil actions wherein the matter in controversy exceeds the sum • 31 or value of $10 ,000 .00 , exclusive of interest Amended and Supplemental. ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 2 A PROFESSIONAL.SERVICE CORPORATION • • I060.I N.E. Seth Place, Suite 105 . • Kirkland,Washington 98033 (206)e!8-1616 I' 1 i 1 A 1 'I ' 1 and costs , and arises under the Constitution laws or. treaties of the United States . 2 as well as 28 USCA §1343 (3) which provides in pertinent part that 3 the district courts shall have original jurisdiction of any civil 4 action authorized by law to be commenced by any person : 5 I' To redress the deprivation, under color of any 6 any state law, statute , ordinance , regulation , I li custom or usage , of any right , privilege or 7 immunity secured by the Constitution of the United States . . . " 8 and the organic law which further authorizes the institution of this suit founded on 42 USCA §1983 , which provides in pertinent 10 i ' part as follows : 11 Every person who , under color of any statute , ,I 12 ordinance , custom or usage , of any state or territory subjects , or causes to he subjected , ' 13 . any person of the United States or other per- I son within the jurisdiction thereof to the 14 deprivation of any rights , privileges or 'I immunities secured by the Constitution and 15 the laws , shall be liable to the party in . 11 - 16 jured in an action at law, sued in equity, r� or other proper proceeding for redress . 17 Plaintiffs ' prayer for declaratory relief is founded on Rule 1 18 • 57 of the Federal Rules of Civil Procedure , as well as 28 USCA 19 §2201 , which provides in pertinent part : ' 20 . Any court of the United States , upon the , 21 filing of an appropriate pleading, may declare the rights and other legal relations of any 22 interesed party seeking such declaration , • whether or not further relief is or could be �I 23 sought . . . 1 24 The jurisdiction of this court to grant injunctive relief is 1 25 conferred by 28 USCA §2202 , which provides : I 26 Further necessary or proper relief based upon d a declaratory judgment or decree may be granted ,iI 27 after reasonable notice and hearing against any 1 adverse party whose rights have been determined 28 by such judgment . it 'I 29 II . PARTIES • l 30 3 . Playtime Theatres , Inc . , a corporate body of the State ii 31 of Washington plans to operate pursuant to a written lease agree- Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer li II Page 3 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 ,I • Kirkland,Washington 98033 II (206)828-3636 li 1 i• • • • • 1 meat , a motion picture theatre which is located at 504 South 3rd 2 Street , within the city limits of Renton , State of Washington . The 3 enterprise will be operated under the name of the Roxy • Theatre . 4 Playtime Theatres, Inc . will also operate pursuant to a written 5 lease agreement , the Renton Theatre at 507 South 3rd Street , within 6 the city limits of Renton , State of Washington . I Ifl 7 Kukio Bay Properties , Inc . , a body corporate of the State of 'I 8 Washington has purchased the motion picture theatres described in 9 the preceeding paragraph and has leased said theatres to Playtime 10 • Theatres , Inc . 11 That on January 26 , 1982 , Kukio Bay Properties , Inc . pur- 12 chased of said theatres for the sum of $800 ,000 .00 . That imme- 13 . diately thereafter , Kukio Bay Properties , Inc . took possession of 14 said theatres . That on or about the 27th day of January, 1982 , by 15 a written agreement , Kukio Bay Properties , Inc . leased said theatre 16 premises to Playtime Theatres , Inc . for a period of ten years 17 j commencing on January 27 , 1982 . In addition , Playtime Theatres , 18 Inc . will have the option to renew said leases for an additional 19 term of ten years terminating on January 26 , 2002 . The lease 20 I agreements to he entered into by the parties provide that the li 21 premises by used for .the purpose of conducting therein adult motion. 22 picture theatres . Playtime Theatres , Inc . took possession of said 23 theatres on or about January 27 , 1982 and on January 29 , 1982 24 planned to begin exhibiting feature length motion picture films for it 25 adult audiences . 26 From on or about January 29 , 1982 , under the operation and 27 management of Playtime Theatres , Inc . , one of said theatres would 28 continuously operate exhibiting adult motion picture film fare to 29 an adult public audience but for the threats of the defendants to II 30 it 31 Amended and Supplemental ATTORNEYS ATLAW I Complaint • Hubbard, Burns & Meyer Page 4 A PROFESSIONAL SERVICE CORPORATION • • 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • • • • 1 enforce their wholly unconstitutional zoning ordinance . 2 4 . The defendant , City of Renton , is a municipal corpora- 1 3 tion of the State of Washington . 4 5 . The Honorable Barbara Y. Shinpoch. is named defendant 1 5 herein' in her capacity as Mayor of the City of Renton , having the 6 titular title . In that capacity, she is the head of City govern- 7 ment and approved the questioned ordinance in the case at bar . , 8 6 . Earl Clymer , Robert Hughes , Nancy Mathews , John Reed , ' 9 Randy Rockhill , Richard Stredicke and Tom Trimm are named as 10 defendants herein as members of. the City Council of the City of 11 Renton who enacted the wholly unconstitutional ordinance as a part 12 of their alleged legislative function . 13 8 . Jim Bourasa is named a defendant herein in his capacity • 14 as Acting Chief 'of Police of the City of Renton who is primarily 15 responsible for seeing to the enforcement of the City of Renton 16 ordinances , civil , criminal and quasi-criminal in nature . 17 9 . The defendants in their official capacities as aforesaid 18 have acted and/or threaten to act to plaintiffs ' immediate and 19 irreparable harm under color of authority of the Ordinance No. 3526 20 . heretofore identified as Exhibit "A" . 21 The named defendants , in their official capacity as afore- 22 mentioned , are joined herein 'to make enforceable to them and/or 23 their agents , servants , employees and attorneys , any Preliminary . 24 and/or Permanent Injunction , Declaratory Judgment , and/or other 25 Order of this Court . 26 27 III . FACTUAL ALLEGATIONS 28 10 . The instant ordinance was passed with the sole purpose 29 to prevent the opening of any adult motion picture theatre within 30 the city limits of Renton and to effectively censor the kinds of 31 • • Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 5 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 • Kirkland,Washington 98033 (206)020-3636 • • 1 protected First Amendment press materials available to . adult 2 citizens of the City of Renton and adult visitors to the City. 3 11 . That no criminal , quasi-criminal and/or civil preceed- 4 ing is pending in the city courts of the City of Renton or in the 5 state courts in the State of Washington against the plaintiffs 6 and/or their agents , servants and employees as of the date of the 7 . filing of this suit with respect to this matter . 8 12 . That on the 19th day of January, 1982 , Mike Parness , 9 Administrative Assistant to the Mayor of the City of Renton has , as 10 aforesaid , advised that if the property of the plaintiffs is used 11 to exhibit adult motion picture films , then enforcement proceedings 12 will he commenced forthwith . 13 13 . That the City of Renton Ordinance No . 3526 was enacted 14 by the City Council and approved by the Mayor as a part of .a syste- 15 matic scheme , plan and design , under color of enforcement of the 16 said ordinance to deny distributors and/or exhbitors of adult films 17 access to the marketplace , and to deny to the intersted adult 18, public , access to such erotic materials which are not otherwise 19' obscene under the test set forth in Miller v. California , 413 U. S . 20 15 (1973) . See Young v. American Mini Theatres , 427 U. S . 50 21 (1975) at pages 62 and 71 . 22 14 . That requiring the plaintiffs to conform to this wholly • 23 unconstitutional zoning ordinance by not using the locations they 24 have contracted to purchase , and requiring them to move their 25 business to' a selectively obscure geographical location , violates 26 . the plaintiffs ' rights under the First , Fifth, Sixth and Fourteenth 27 Amendments to the Constitution of the United States . Indeed , by • 28 this selective ordinance , which would shutter motion picture 29 theatres such as the Roxy Theatre and Renton Theatre , which show as part of their fare , erotic films , the City of Renton by its agents , 31 Amended and Supplemental • ATTORNEYS AT LAW Complaint • Hubbard, Burns & Meyer Page 6 A PROFESSIONAL SERVICE CORPORATION • 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 _ I • • 1 servants and employees will be denying the plaintiffs and other 2 persons lawfully engaged in the exhibition of adult film fare • 3 presumptively protected by the First Amendment to the Constitution 4 of. the United States , [Heller v. People of the State of New York, 5 413 U. S . 483 (1973) ; and Roaden v. Commonwealth of Kentucky, 413 6 U. S. 496 (1973) ] , access to the marketplace as well as the right of 7 the interested adult public to have access to adult film fare , and ' 8 will deny the plaintiffs the right to engage in said business in 9 the City of Renton; and unless restrained , .the City, under color of 10 enforcement of its zoning laws , will cause said businesses to cease 11 and close up ; and unless restrained , defendants will continue to 12 seek to enforce said ordinance and this will have the effect of 13 totally depriving your plaintiffs , as well as others similarly 14 situate , from their normal business activities . This will, have a 15 chilling effect on the dissemination and exhibition of adult film 16 fare to those interested adults . who seek to satiate their educa- 17 tional , entertainment , literary, scientific and artistic interests p 18 in such press materials . The ordinance places an intolerable ;j 19 burden upon the exercise of First Amendment rights , arbitrarily and 20 capriciously descriminates as to the nature of film fare exhibited 21 based upon an assumption which is not rationally related to a valid 22 • public purpose nor necessary to achieve a compelling state interest 23 in violation of the Equal Protection Clause of the Fourteenth 'I 24 Amendment of the Constitution of the United States , establishes 25 classifications which are arbitrary and capricious and constitutes 26 an abuse of legislative discretion and is not rationally related '� 27 j and also ' deprives plaintiffs of their equal rights under the 28 Fourteenth Amendment of the Constitution of the United States ; and 29 further by its use has language that is intrinsically vague and I 30 II void under the First and Fifth Amendments to the Constitution of 31 it Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer • Page 7 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (2061 828.3636 1 the United States and void for impermissible overbreadth by the use 2 of means which are too broad for the alleged evil intended to he 3 curtailed . That the enactment of the City of Renton Ordinance No . 4 3526 was done without the constitutionally required legislative 5 fact finding required to meet the burden imposed upon those who 6 seek to curtail activity which might otherwise he protected within 7 the pneumbra of the First Amendment of. the Constitution of the 8 United States . The defendants , by their agents , servants and 9 employees , and/or their attorneys , by enacting such a wholly 10. unconstitutional ordinance , and now threatening to enforce the 11 same , have created a pervasive atmosphere of official repression ' 12 constituting a "chilling effect" upon the exercise of First 13 Amendment rights of plaintiffs and others who may 'wish to engage in 14 the lawful business of exhibiting adult film fare protected by the 15 First Amendment to the Constitution of the United States , as well 16 as the interested adult public who desire to see and view such 17 adult film fare , and this has imposed and threatens to impose a 18 wholly unconstitutional prior restraint condemned by the First , 19 Fourth, Fifth, and Fourteenth Amendments to the Constitution of the 20 United States , and this is merely a design and scheme on the part 21 of the defendants to . force the plaintiffs and others similarly 22 situate out of business , under color and pretense of claimed 23 enforcement of the ordinance attached hereto as -Exhibit "A" , well 24 . knowing the patent unconstitutionality of the same . 25 15 . Ordinance No . 3526 provides a new use classification 26 within the zoning laws of the City of Renton; i .e . , an adult motion 27 picture theatre . 28 16 . An adult motion picture theatre is not a permitted use • 29 within any zoning classification currently in use within the City 30 of Renton. Accordingly, in order to. locate an adult motion picture 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 8 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 • (206)828-3636 • 1 theatre anywhere within the City of Renton , it is necessary to 2 obtain a special permit , conditional use or variance . 3 17 . The process of applying for a special. permit , 4 conditional use or variance vests unfettered discretionary 5 authority in the Hearing Examiner , Board of Adjustment and/or City 6 Council to deny such special permit, conditional use or variance . 7 No objective written criteria , standards or guidelines have been 8 established which would in any way limit this discretionary 9 authority. In addition, the ordinances of the City of Renton set 10 no time limit for the City Council to make a decision relative to 11 an application for a special permit , conditional use or variance . 12 I The City Council has the discretion to withhold .making a decision 13 1 for an unreasonable length of time if it chooses to do so . The 14 various matters to be considered by the Hearing Examiner and/or the 15 1Board of Adjustment in the, granting or denial of a special permit , 16 conditional use or variance are vague. and aesthetic qualities that 17 are not capable of objective measurement and , as such, they create 18 the potential for an unreasonable burden upon free speech and , as 19 applied to plaintiffs and a motion picture theatre , they are 20 impermissibly overbroad and unconstitutional . 21 . i 18. That requiring the plaintiffs to submit to a wholly 22 unconstitutional exercise of unbridled discretion at the hands of a 23 Hearing Examiner or Board of Adjustment and/or the City Council , in 24 the absence of narrowly drawn , reasonable and difinitive standards 25 to be followed in the exercise of said discretion violates 26 plaintiffs ' rights under the First , Fifth and Fourteenth Amendments 27 to the Constitution of the United States . Interstate Circuit v. 28 Dallas , 390 U. S. 676 (1968) and Shuttlesworth v. City of 29 Birmingham, 394 U. S. 147 (1969) . 30 ' 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 9 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 • 1 19. Further , since the Hearing Examiner , Board of 2 Adjustment and/or the City Council have no narrowly drawn , 3 reasonable and definitive standards to be followed by them in the 4 exercise of the discretion conferred upon them by the Renton Zoning 5 Code in making a determination about the issuance of a special 6 permit , conditional use or variance , it would be an exercise in 7 futility to engage in such administrative process because of the 8 patently unconstitutional character of the zoning provisions in 9 question. 10 20. The provisions of the Renton Zoning Code which apply to 11 the issuance of special permits , conditional uses or variances , 12 establish classifications which are arbitrary and capricious and 13 • constitute an abuse of legislative discretion , and also permit 14 censorship by standardless rationale subject to abusive discretion 15 by the defendants in violation of plaintiffs ' substantive and due 16 process rights under the pneumbra of the First , Fifth and 17 Fourteenth Amendments of the Constitution of the United States ; and 18 further , have language that is intrinsically vague and void under 19 the First and Fifth Amendments to the United States Constitution 20 and void for impermissible overbreadth . 21 IV. BASIS IN LAW FOR RELIEF 22 21 . Plaintiffs have the right to engage in the business of 23 offering for exhibition adult motion picture film fare for profit 24 by virtue of the First Amendment to the Constitution or adult film 25 fare which is presumptively protected under said constitutional 26 amendment , and the public , including both adult citizens and 27 visitors to the City of Renton have the same constitutional right 28 to view said adult motion picture film fare as may he offered for 29 said exhibition to said adults in a nonintrusive manner . Heller v. 30 New York, 413 U. S . 483 , 37 L. Ed .2d 745 , 93 Sup .Ct . 2789 (1973) . 31 ATTORNEYS AT LAW Amended and Supplemental Complaint Hubbard, Burns & Meyer Page 10 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 Kirkland,Washington 98031 (2061 828-1616 1 Further , the conduct of the defendants and their agents , servants , 2 employees and/or attorneys and others , acting under their direction 3 and control in attempting to refuse to allow plaintiffs to operate 4 their businesses in the City of Renton , unless they remove 5 themselves to . some obtuse selectively obscure geographical. site , 6 will have the draconian effect of denying plaintiffs and others 7 similarly situate , access to the marketplace , and the viewing adult 8 public the right to satisfy its interest for adult film fare . 9 22 . As a further result of the unconstitutional ordinance 10 enacted by the City Council and approved by the Mayor , as well as 11 the ' threatened conduct of the defendants to force plaintiffs to 12 not engage in their businesses , plaintiffs have been required to 13 retain attorneys to pursue their rights under the First , Fourth, 14 Fifth , and Fourteenth Amendments to the Constitution of the United 15 States , and the defendants , acting under color of pretense of law, 16 as aforesaid , have threatened to initiate actions to enforce the 17 said ordinance , which actions are and/or threaten to he , repugnant 18 to the Constitution of the United States . 19 23 . The City of Renton zoning ordinance designated herein 20 as Ordinance No. 3526 , is clearly repugnant to the First , Fourth , 21 Fifth and Fourteenth Amendments to the Constitution of the United 22 , States as written and as threatened to be applied , for the follow- 23 ing reasons : • 24 (a) Said ordinance is void for vagueness in that it 25 fails to establish by its terms , definitive standards , 26 criteria and/or other controlling guides defining 27 words , inter alia "other relig ious facility or institu- 28 tion" in Section II(A) (4) or "distinguished or charac- 29 terized byemphasis on matter depicting ,an p describing 310 or relating to 11specif_ied sexual activities" as used in 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 11 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland;Washington 98033 (206)828-3636 • • 1 Section I (1) of said ordinance , as well as the words 2 "erotic touching" as used in Section I(2) (C) ; and as 3 such is 'a deprivation under color of state law of 4 plaintiffs ' right to due process under the First , Fifth 5 and Fourteenth Amendments to the Constitution of the 6 United States . 7 (b) Said ordinance is void for impermissible over- ; 8 breadth by means which sweep unnecessarily broadly and 9 thereby invade the area of protected freedoms in that 10 the same sets forth standards at variance with those 11 minimum standards prescribed by the Supreme Court of 12 the United States , in connection with the exercise of 13 First Amendment rights,, and in particular , those 14 provisions which set forth the "specified anatomical 15 areas" and "specified sexual activities" in Section 16 I (2) and Section I(3) .. 17 (c) Said ordinance is further void for impermissible 18 overbreadth and deprives plaintiffs of due process and 19 equal protection of the law through the arbitrary and i . 20 uncontrolled power conferred by the enactment of said 21 ordinance to the defendants ' enforcement of zoning laws 22 for the exercise of otherwise clear First Amendment 23 rights and therefore the same is invalid under the 24 First and Fifth Amendments to the Constitution of the 25 United States made obligatory on the States under the 26 due process provisions of the Fourteenth Amendment . 27 (d) Said ordinance , lacking precision and narrow 28 specificity in the standards to be employed by defen- 29 dants in the operation of their legislative power to 30 . enact zoning laws , constitutes a prior restraint under 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 12 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 10S Kirkland,Washington 98033 (206)828-3636 • • • • 1 color of state law on the exercise of plaintiffs of 2 their rights under the First , Fifth and Fourteenth. 3 Amendments to the Constitution of the United States and !j 4 as written , which is and has been, under the facts 5 alleged herein , susceptible to arbitrary, capricious 6 and uncontrolled discretion on the part of defendants 7 herein , their agents , servants and employees . 8 (e) Said ordinance is void in that it fails , by its 9 terms , to establish procedural safeguards to assure a 10 prompt decision on the challenge to the arbitrary 11 zoning classification , and if a zoning challenge is 12 denied , the ordinance fails by its terms to provide for 13 a prompt final judicial review to minimize the deter- 1 14 rent effect of an interim and possibly erroneous zoning 15 classification under procedures which places the burden 16 on plaintiffs to both expeditiously institute judicial 17 review and to persuade the courts that the activity 1 18 sought to he licensed and the procedure and ordinance 19 employed to authorize the same , is without the ambit of 20 the First Amendment , and the abatement of the noncon- 21 forming use is not a proper exercise of authority. 22 • (f) Said ordinance is further void in that the same , 23 . by its terms , places an impermissible burden upon the 24 exercise of plaintiffs ' First Amendment rights . • 25 (g) Said ordinance is further void as violative of the 26 Equal Protection Clause of the Fourteenth Amendment , in 27 that the same creates a statutory classification which 28 • has no rational relationship to a valid . public purpose 29 nor is the same necessary to the achievement of a com- 30 • pelling state interest by the least drastic means . 31 ATTORNEYS AT LAW Amended and Supplemental Complaint • Hubbard, Burns & Meyer Page 13 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 • Kirkland,Washington 98033 • (206)828-3636 • • • • I II I, • • 1 (h) Said ordinance is repugnant to the substantive due 2 process provisions of the Fifth and Fourteenth • 3 Amendments to the Constitution of the United States 4 because the same permits deprivation of liberty and/or ' 5 property interests for the exercise of First Amendment 6 rights by unreasonable , arbitrary and capricious means 7 without a showing of a real and substantial. relation- , 8 ship to any state or city subordinating interest which ' • 9 • is compelling to justify state or city action limiting 10 the exercise by plaintiffs of their First Amendment 11 freedoms . 12 (i) Said ordinance is impermissibly overbroad and 13 repugnant to the procedural due process requirements of 14 the Fifth and Fourteenth Amendments to the Constitution 15 of the United States, in that the same employs means • 16 lacking adequate safeguards , which due process' demands , 17 to assure presumptively protected press materials , • 18 sought to be distributed to an interested adult public , 19 the constitutional protection of the First Amendment . 20 .(j) Said ordinance is vague and impermissibly over- 21 broad and thus repugnant to the First , Fourth, Fifth 22 and Fourteenth Amendments to the United States Consti- • 23 tution , in that said ordinance , by its provisions , 24 permits inherent powers of censorship and suppression '25 constituting a prior restraint on the exercise of 26 plaintiffs' First Amendment rights as well as the 27 interested adult public who may desire to view presump- • 28 tively protected press materials for the ideas pre- 29 sented therein. 30 • 31 • • Amended and Supplemental • ArroRNEYSATLAW Complaint Hubbard, Burns & Meyer Page 14 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 it I l • • • I l • h . 1 (k) Said ordinance , and particularly Section I (2) , in i 2 defining "specified. sexual activities" defines that 3 phrase in part as "erotic touching" and is thus void 4 for vagueness in that "erotic' is a word that can mean 5 many things to many people and without further clarifi- .6 cation confers on defendants unbridled discretion in 7 the interpretation of that term and as such, is viola- 1 i 6 tive of the plaintiffs ' rights under the First , Fifth 9 and Fourteenth Amendments to the Constitution of the i 10 United States . I 11 ' (1) Said ordinance and particularly Section II (A) as I 12 it I� purports to establish restrictions , requirements and 13 conditions for an alleged adult theatre imposes bur- 14 dens , restrictions and conditions that are not justi- I, 15 fied by any compelling state interest and as such ; the 16 classification is an invidious and arbitrary discrimi- i 17 nation as to a class and as such, is a denial. of 18 plaintiffs ' rights under . the Fourteenth Amendment to 19 the Constitution of the United States , particularly I 20 . where , as here , protected First Amendment activity is i 21 � involved . i . 22 (m) The plaintiffs will suffer immediate and substan- I 23 tial economic harm if said ordinance is applied to them 24 and the result of the application of said ordinance to 25 the activities of the plaintiffs will result in a for- I 26 feiture of substantial business interests and assets . i • 27 28 24 . Plaintiffs herein aver that their rights afforded, under 29 the First , Fourth, Fifth , Sixth and Fourteenth Amendments to the i 30 Constitution of the United States have been violated by said 1 31 defendants in the enactment of a wholly unconstitutional ordinance , Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 15 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 ii . .1. • • • 1 and that unless this Court grants the relief prayed for , said 2 plaintiffs and others similarly situate , as well as the interested 3 adult public , will suffer irreparable harms . 4 25 . Plaintiffs aver that the aforesaid action of the • 5 defendants in enacting said ordinance , and the threatened enforce- 6 ment thereof by said defendants acting under color of state law, is 7 in furtherance of a scheme , plan and design to prevent any business 8 • activity which may offer for sale or exhibition adult press I 9 materials in the City of Renton to the adult public . • • 10 26 . Those portions of the Renton Municipal. Code contained 11 in Chapter 4-722 relative to the issuance of special permits , !I 12 conditional uses and variances , are clearly repugnant to the First , ' 13 Fourth, Fifth and Fourteenth Amendments to the Constitution of the 14 United States as written and as threatened to he applied , for the 15 following reasons : • • 16 (a) Said provisions are void for vagueness in that they i 17 fail to establish by their terms definitive standards , 18 criteria or other controlling guides defining concepts 19 such as , inter alia 20 * * * 21 • Special Permits : Recognizing that there are certain it 22 uses of property that may be detrimental to the public health ; safety, morals and general welfare . . . 23 * * * * * 1 24 The purpose of a conditional use permit shall he to 25 • assure , by means of imposing special condition and requirements on development , that the compatibility of 1i 26 uses , a purpose of this Title , shall be maintained , considering other existing and potential uses within 27 the general area of the proposed use . 28 * * * * it 29 The examiner may deny any application if the character- istics of the intended use would create an incompatible 1 • 30 or hazardous condition . 31 - * * * * * • Amended and Supplemental ATTORNEYS ATLAW Complaint • Hubbard, Burns & Meyer Page 16 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 1 1� • • • • • • • • The examiner shall have the right to limit the term and 2 duration of any such conditional use permit and may impose such conditions as are reasonably necessary and 3 required . 4 * * * 5 The conditions imposed shall be those which will reasonable assure that nuisance or hazard to life or 6 property will not develop . • 7 * * * * 8 The examiner may, after a public hearing , permit the 9 following uses in districts from which they are pro- hibited by this Chapter where such uses are deemed essential or desirable to the public convenience or 10 wel fare and are in harmony with the various elements or • 11 objectives of the comprehensive plan . * * * 12 13 The hearing examiner shall he empowered to approve conditionally approve or disapprove said conditional 14 use permit applications based on normal planning considerations , including , but not limited to the 15 following factors : (a) suitability of site ; (b) conformance to the comprehensive plan ; (c) harmony with. 16 the various elements or objectives of the comprehensive plan; (d) the most appropriate use of land through the 17 city; (e) stabilization and conservation of the value of property; . . . and prevention of neighborhood deteri- 18 oration and blight ; (a) the objectives of zoning and planning in the community; (p) the effect upon the 19 general city' s welfare of this proposed use in relation to surrounding uses in the community . I . 20 I'I * * * * * 21 That the granting of the variance will not be materi- 22 ally detrimental to the public welfare or injurious to the property improvements in the vicinity and zone in 23 which subject property is situated . ;I 24 * * ;'c * • 25 That approval shall not constitute a grant of special privilege inconsistent with the limitation upon uses of II 26 other properties in the vicinity and zone in which the it subject property is situated . 27 • ii * * * * 28 • That the approval is determined by the examiner or 29 Board of Adjustment is a minimum variance that will 1 • accomplish the desired purpose . it • it 31 • ATTORNEYS AT LAW Amended and Supplemental . Complaint . Hubbard, Burns & Meyer Page 17 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 • (2061 828-3636 • • • 1 and as such are a deprivation under color of law of • 2 plaintiffs ' right to due process under the First , Fifth 3 and Fourteenth Amendments to the Constitution of the 4 United States . Said provisions are void for impermis- 5 sible overbreadth by means which sweep unnecessarily 6 broadly and thereby invade the area of protected 7 freedoms in that the same set forth standards at vari- 8 ance with those minimum standards prescribed by the • 9 Supreme Court of the United States in connection with 10 the exercise of First Amendment rights . {' I 11 (b) Said provisions are further void for impermissible • i2 overbreadth and deprive plaintiffs of due process and 13 equal protection of the law through the arbitrary .and 14 uncontrolled discretionary power conferred by said pro- 1 15 • visions upon the Hearing Examiner , Board of Adjustment 1 16 and City Council and , therefore , the same are invalid 17 under the First and Fifth Amendments to the Constitu- 18 tion of the United States made obligatory on the States 19 under the due process provisions of ' the Fourteenth 20 • Amendment . 21 (c) Said provisions lack precision and narrow speci- 1,11 22 ficity in the standards to be employed by the Hearing 23 Examiner, Board of Adjustment and/or City Council in 24 the exercise of the discretion used in the operation of 25 the City of Renton' s legislative power to enact �I 26 ordinances providing for zoning and , as such, consti- 27 tute a prior restraint under color of state law and the 28 exercise by plaintiffs of their rights under the First , !I 29 Fifth and Fourteenth Amendments to the Constitution of 30 the United States and as written , which is and have 31 �1 • Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 18 A PROFESSIONAL SERVICE CORPORATION 10604 N.E. 38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 . • • • • • • • 1 been, under the facts alleged herein , . susceptible to 2 . arbitrary, capricious and uncontrolled discretion . on 3 the part of the defendants herein , their agents , • 4 . servants and employees . 5 (d) Said provisions are void in that they fail by 6 their terms to establish procedural safeguards to 7 assure a prompt decision on a challenge . to the capri- • ' 8 cious denial of a special permit , conditional use or 9 variance . The provisions fail by their terms to pro- • • • 10 • vide for a prompt final judicial review to minimize the 11 deterrent effect on an interim and possibly erroneous 12 and arbitrary denial of a zoning special permit , condi- 13 • tional use or variance and , thus , the burden is on 14 plaintiffs to both expeditiously institute judicial • 15 review and to persuade the courts that the activity 16 sought to be pursued and the procedures and ordinances 17 • employed to prohibit the same are without the ambit of • 18 • the First Amendment . HI 19 • V. . RELIEF SOUGHT 20 21 27 . Plaintiffs are entitled' to and desire that this Court ! 22 enter a declaratory judgment , declaring Ordinance No . 3526 to be 23 unconstitutional as written and/or as defendants purport to apply 24 it , in whole or in part , to be repugnant to the First , Fourth., 25 Fifth, Sixth and/or Fourteenth Amendments to the Constitution of 26 the United States . • 27 28 . Plaintiffs seek a preliminary and permanent injunction 28 to prohibit the enforcement by defendants , and/or their agents , 29 servants , employees , attorneys , and others acting under its direc- 30 tion and control of the provisions of Ordinance No. 3526.. 31 • WHEREFORE, plaintiffs pray: Amended and Supplemental ATTORNEYS AT LAW Complaint . Hubbard, Burns & Meyer Page 19 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland.Washington 98033 (206)828-3636 • I - • ' 1 1 . That defendants be required to answer forthwith this 2 Amended and Supplemental Complaint in conformance with the rules 3 and practices of this Honorable Court . 4 2 . That a Declaratory Judgment he rendered declaring 5 Ordinance No. ' 3526 to be unconstitutional as written , in whole 6 and/or in part , and that this Court further declare the ordinance 7 to be unconstitutional in its threatened application to the 8 plaintiffs . 9 3 . That a Preliminary Injunction issue from this Court upon 10 hearing, restraining defendants and their agents , servants , 11 employees , and attorneys , and others acting under their direction 12 and control , pending a hearing and determination on. plaintiffs ' 13 application for a Permanent Injunction , from enforcing or executing 14 and/or threatening to enforce and/or execute, the provisions of 15 Ordinance No. 3526 in whole and/or in part , by arresting plain- 16 tiffs , their agents , servants or employees , and/or threatening to 17 arrest plaintiffs , their agents , servants and employees and/or 18 harassing, threatening to close , or otherwise interferring with 19 plaintiffs ' peaceful use of the premises . 20 4 . That upon a final hearing, that this Court issue its 21 Permanent Injunction • prohibiting the defendants and/or their 22 agents , servants and employees , and/or others in concert with them, 23 from enforcing Ordinance No. 3526 in whole or in part because of 24 its patent unconstitutionality. 25 5 . That upon a final hearing this Court award to the plain- 26 tiffs such damages as they shall have sustained by reason of loss 27 of business , the expenditure of assets to enforce and protect the 28 rights guaranteed to them under the Constitution of the United 29 States , their reasonable attorney' s fees and such other damages as 30 I may be ettablished at the time of trial . 31 Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 20 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 • Kirkland,Washington 98033 (206)828-3636 I • • • • • 1 6 . And for_ such other and further relief as may he 2 appropriate under the circumstances of this case . 3 DATED this. ` day of February, 1982 . 4 Respectfully submitted , • 5 HUBBARD, BURNS FL MEYER 6 By Vr ( 7 Jack. R. Burns Attorney for Plaintiffs 8 OF COUNSEL: 9 Robert Eugene Smith, Esq . 10 16133 Ventura Blvd . Penthouse Suite E 11 Encino, California 91436 • 'I 12 (213) 981-9421 '1 13 14 STATE OF WASHINGTON ) ss . 15 COUNTY OF KING • ) 16 COMES NOW Jack R. Burns who , after being duly sworn , did I 17 depose and say: ;I 18 1 . That Playtime Theatres , Inc . and Kukio Bay Properties , 19 Inc . are bodies corporate of the State of Washington , in good 20 standing. • • 21 2.: That affiant is one of the attorneys for said 22 corporations . Affiant further states that he is authorized to 23 speak on their behalf. j 24 3 . That said corporations are the plaintiffs in the within 25 proceedings . 26 4 . That he has read the complaint to which this affidavit III 27 is affixed and asserts that the factual allegations contained • 28 therein are true and correct to the best of his information , I�II 29 knowledge and belief. 30 5 . That the enforcement of the City of Renton Ordinance No . it 31 3526 will , if upheld , have the effect of depriving plaintiffs of 1 • Amended and Supplemental ATTORNEYS AT LAW 1, Complaint Hubbard, Burns & Meyer li Page 21 A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 98033 (206)828-3636 'I $ 1 access to the marketplace to exhibit their presumptively protected 2 First Amendment wares of adult film fare ; and further , will deny to 3 interested adults , the access to such material for their informa- 4 tion , education , entertainment , literary, scientific or artistic 5 interests , as well as subject plaintiffs , their agents , servants 6 and employees to criminal arrests and confiscatory fines and 7 forfeitures of property interests ; and would further destroy the I 8 property and interest of said corporations in the location of their 9 theatres operated at 504 South 3rd Street , and 507 South 3rd !I 10 Street , in the City of Renton , and subject said plaintiff 11 corporations to grievous financial harm as well as to also chill 12 their rights of free speech as guaranteed by the First Amendment . • 13 Dombrowski v. Pfister , 380 U. S. ' 479 (1965) . 14 15 \ ' ; , I Jack` R. Burns 16 SUBSCRIBED AND SWORN to before me this Cr ' day of 17 February, 1982 . it 1819 , • Notary P blic in and the 20 State o`f W 1hington residing jl at 21 y it 22 it II 23 24 • 25 11 26 • 27 28 iI 29 I! 30 • '1 • it 31 • • Amended and Supplemental ATTORNEYS AT LAW Complaint Hubbard, Burns & Meyer Page 22 o A PROFESSIONAL SERVICE CORPORATION 10604 N.E.38th Place,Suite 105 Kirkland,Washington 9803.1 (206)828-3636 I I ‘IAlE 01 WASHINGTON • ij -- II ti i4)UNrY OF KING • ji t..t.a�.LC.i:'C...41.,...LUE. iD City Clerk in and for the City of Renton. • •ten, do hereby certily Mai theforegoing Ordinance is a true and correct ,c rl Ori,inance No..::.3:,a.57 of the City of Renton. as it appears on file. .n r.. „u co, and do further certify that the same has been published according o law. • • • n Witness Whereof I have hepunto set my ha�nd and affixed the seal of tile • • • :ity of Renton, this ,__dayr.,(_.!._R/ _7. � _ :.._,.� �f.( , City Clerk CITY. OF RENTON , WASHINGTON • ORDINANCE NO . 3526.. 1 AN ORDINANCE OF THE CITY OF RENTON , WASHINGTON, RELATING TO LAND USE AND ZONING THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO • ORDAIN AS FOLLOWS':' • SECTION I : Existing Section 4- 702 of Title IV (Building Regulations) of Ordinance No . 1628 entitled "Code of General Ordinances of the City of Renton" is hereby amended by adding the following 1 subsections : Ij 1 . "Adult ;lotion Picture Theater" : An enclosed building used for presenting motion picture films , video cassettes , cable television , or any other such visual media , distinguished or characteri ' • by an emphasis on matter depicting , describing or relating to "specific, sexual activities" or "specified anatomical areas" as hereafter defined for observation by patrons therein . i e' II 2 . "Specified Sexual Act �.vii.t_i .,, (a) Human genitals in a state of sexual stimulation or arousal ; (b) Acts of human masturbation , sexual intercourse or sodomy ; II (c) Fondling or other erotic touching of human genitals pubic region , buttock or female breast . 3 . "SSoecified Anatomical Areas" (a) Less than completely and •opaquely covered human • genitals , pubic region , buttock, and female breast below a point immediately above the top ' I • of the arcola ; and • (h) Human male genitals in a discernible turgid state , even if completely and opaquely covered. II - 1- • Exhibit 1 • 4 • SECTION II _ There is hereby added a new Chapter to Title IV .(Building Regulations) of Ordinance No . 1628 entitled "Code of General Ordinances of the City of Renton" relating to adult motion picture theaters as follows : A . Adult motion picture theaters are prohibited within the area circumscribed by a circle which has a radius consisting of the following distances from the following specified uses or zones : 1 . Within or within one thousand (1000 ' ) feet of any r. esi.denti.al. zone (SR- 1. , SR-2 , R-1 , S- 1 , R-2 , R-3 , R-4 or '1') or, any single family or multiple family residential use . 2 . One ( 1 ) mile of any public or private school 3 . One thousand ( 1000 ' ) feet of any church or other • religious facility or institution 4 . One thousand ( 1.000 ' ) feet of any public park or P- 1 zone . B . The dist ances provided in this section shall be measured by following a straight line , without regard to intervening buildings , from the nearest point of the property parcel upon which the proposed use is to be located , to the nearest point of the parcel of property or the land use district boundary line from which the proposed land use is to he separated . SECTION III : This Ordinance shall be effective upon its passage , approval and thirty days after its publication . PASSED BY THE CITY COUNCIL, this 13th day of April , 1981 f < < /a (.7 GI? . Delores A . Mead , City Clerk APPROVED BY THE MAYOR this 13th day of April , 1981 . ' r o v � � r�••S .r�o A d?r, pp e.d as to folrm : Shinpoch , Mayor Barra Y . vlJc►. •�' •v awrence J . rren , City Attorney Date of Publication : May 15, 1981 , UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON PLAYTIME THEATRES , ) INC. , et al . , ) ) "0 : C82-59M Plaintiffs , ) v• ) CERTIFICATE OF SERVICE ) THE CITY OF RENTON, ) et al . , ) Defendants . ) I certify that I served a copy of this Amended and Supple- mental Complaint for Declaratory Judgment and Preliminary and Permanent Injunction on the parties to this action on February 8 , 1982 , by mailing copies , postage prepaid , to them at the following addresses : Daniel Kellogg Warren & Kellogg 100 So. Second Street P.O. Box 626 Renton, Washington 98057 I certify under penalty of perjury that the foregoing is true and correct . I . Jack• R. Burns