Northern District Affirms Time Limits for Locality to Make Zoning Decisions

The Northern District of Georgia found that an local Adult Code that provided no specific time frame to schedule a hearing or reach a decision gave too much discretion to public officials and was invalid.  Ordinances must contain two procedural safeguards to ensure prompt-decision-making:  (1) licensing officials must be required to make prompt decisions; and (2) prompt judicial review must be available to correct erroneous denials.  To satisfy the time-limit requirement, an ordinance must ensure that permitting decisions within a specified time period.

Keep reading for GZB’s summary of Curves, LLC v. Spalding County, Georgia, United States District Court, N.D. Georgia, Civil No. 3:07-CV-10-JTC. 

Curves, LLC opened a sports bar in Spalding County, Georgia to serve food and alcohol while offering “some live dance entertainment.”  Curves described itself as a “Coyote Ugly”-type entertainment venue where its female staff would occasionally jump up on the bar and dance for the patrons.  Curves wanted to offer “erotic dance performances in a G-string and pasties,” but believed that if it did Spalding County would arrest or ticket its management and employees for violation of the County’s zoning ordinances.  Curves filed a complaint and a motion for preliminary injunction arguing that the County zoning code violated due process and the First Amendment.

The County code required County staff to make a decision on an adult entertainment application within thirty days and allowed an appeal to the County Board of Commissioners.  However, there was no time limit for a decision by the Board of Commissioners.  Curves argued that this discretion to delay a decision was a “prior restraint” upon expression which fails to guarantee prompt decision-making and allows unbridled discretion.  The Northern District agreed.

A prior restraint that fails to place limits on the time within which the decisionmaker must issue the license is impermissible.  Ordinances must contain two procedural safeguards to ensure prompt-decision-making:  (1) licensing officials must be required to make prompt decisions; and (2) prompt judicial review must be available to correct erroneous denials.  To satisfy the time-limit requirement, an ordinance must ensure that permitting decisions are made within a specified time period.  The ordinance must contain a specific provision explicitly limiting the period of time within which licensing officials must make permitting decisions.  An ordinance only requiring an hearing within a number of days of application or allowing a business to conditionally begin operating after that time until the application is denied does not satisfy the time-limit requirement.  The ordinance does not satisfy the requirement unless it provides “for what would happen if the government entity, because of bad faith or innocent bureaucratic delays, fails to act on an application before the deadline.”

Here, the County zoning code gave too much discretion to public officials and was invalid because it was not time-limited. 

Curves was entitled to a preliminary injunction against the County.

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2 responses to this post.

  1. […] GwinnettBuzz has already noted that the City’s actions jeopardizes the applicant’s property rights to conduct a legal business, but it seems that unless the City has specified a time for action on the permit application the delay also runs afoul of the recent Court of Appeals decision in Curves, LLC v. Spalding County, Georgia. […]

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