PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
INDEPENDENCE NEWS, INCORPORATED,
a North Carolina Corporation;
POLO SOUTH, INCORPORATED,
Plaintiffs-Appellants,
and
CENTRAL AVENUE VIDEO,
INCORPORATED, a North Carolina
Corporation,
Plaintiff, No. 08-1654
O’SHEILDS ENTERTAINMENT,
INCORPORATED; RIVERSIDE VIDEO
PLUS,
Intervenors/Plaintiffs,
v.
CITY OF CHARLOTTE, a North
Carolina Municipal Corporation,
Defendant-Appellee.
2 INDEPENDENCE NEWS v. CHARLOTTE
INDEPENDENCE NEWS, INCORPORATED,
a NORTH CAROLINA CORPORATION;
POLO SOUTH, INCORPORATED,
Plaintiffs-Appellants,
and
CENTRAL AVENUE VIDEO,
INCORPORATED, a North Carolina
Corporation,
Plaintiff, No. 08-1655
O’SHEILDS ENTERTAINMENT,
INCORPORATED; RIVERSIDE VIDEO
PLUS,
Intervenors/Plaintiffs,
v.
CITY OF CHARLOTTE, a North
Carolina Municipal Corporation,
Defendant-Appellee.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Senior District Judge.
(3:02-cv-00014-GCM)
Argued: March 27, 2009
Decided: June 3, 2009
Before WILLIAMS, Chief Judge, and SHEDD and AGEE,
Circuit Judges.
INDEPENDENCE NEWS v. CHARLOTTE 3
Affirmed by published opinion. Chief Judge Williams wrote
the opinion, in which Judge Agee concurred. Judge Shedd
wrote a separate concurring opinion.
COUNSEL
Joseph L. Ledford, Charlotte, North Carolina, for Appellants.
Robert Erwin Hagemann, OFFICE OF THE CITY ATTOR-
NEY, Charlotte, North Carolina, for Appellee.
OPINION
WILLIAMS, Chief Judge:
In 1994, the City of Charlotte ("City") enacted an Adult
Zoning Ordinance ("AZO") to protect certain sensitive uses
from the "secondary effects" associated with adult establish-
ments. The ordinance contains an amortization provision that
required covered adult establishments to close or relocate to
a conforming location by January 18, 2002. Independence
News, Inc. ("Independence News") and Polo South, Inc.
("Polo South") (collectively, "Appellants"), which own and
operate sexually oriented adult establishments subject to the
AZO, filed this lawsuit in the District Court for the Western
District of North Carolina seeking to avoid enforcement of the
amortization provision against their establishments. Appel-
lants claimed, inter alia, that enforcement of the AZO would
strip them of their First Amendment protections because their
adult establishments had not produced any unwanted second-
ary effects in the years since the AZO’s enactment.
The district court dismissed the Appellants’ as-applied
challenge to the secondary effects rationale of the AZO, and
it also granted summary judgment in favor of the City on
Appellants’ facial challenge to the AZO’s variance provision,
4 INDEPENDENCE NEWS v. CHARLOTTE
which does not require the Charlotte Zoning Board of Adjust-
ment ("ZBA") to consider the absence of "secondary effects"
when deciding whether to grant a variance.
On appeal, Appellants challenge both of these rulings. For
the following reasons, we affirm.
I.
A.
On January 18, 1994, the City adopted the AZO, a text
amendment to the Charlotte Zoning Ordinance. Charlotte,
N.C., Ordinance 3782 (Jan. 18, 1994), current version codi-
fied at Charlotte, N.C., Code, app. A §§ 2.201, 9.8503, 9.903,
9.1103, and 12.518 (2008). The AZO defined the term "adult
establishment" and limited the location of adult establish-
ments to several zoning districts: B-2 (Business), UMUD
(Uptown Mixed Use District), and I-1 and I-2 (Industrial). Id.
It also included a section, Section 12.518, which required, and
continues to require, that adult establishments be located at
certain distances from any protected use—that is, any residen-
tial district, school, church, child care center, park or play-
ground. Id. Specifically, section 12.518(a) provides that adult
bookstores and adult mini-motion picture theaters must be at
least 1,500 feet from any protected use, and section 12.518(b)
requires that adult live entertainment establishments be at
least 1,000 feet from any protected use. Id. Also, section
12.518(c) provides that adult bookstores and adult mini-
motion picture theaters must be at least 1,000 feet from any
other adult establishment, and section 12.518(d) provides that
adult live entertainment establishments be at least 500 feet
from any other adult establishment. Id. No more than one
adult establishment may be located in the same building. Id.
Section 12.518 was added in an effort to "establish reason-
able regulations to prevent a concentration of adult establish-
ments within the City of Charlotte and to separate adult
INDEPENDENCE NEWS v. CHARLOTTE 5
establishments from . . . sensitive uses" because "[s]tudies . . .
show[ ] that lowered property values and increased crime
rates tend to accompany and are brought about by the concen-
tration of adult establishments." Id. In the City’s view, such
"[r]egulation . . . [wa]s necessary to insure that [the effects
from adult establishments] do not contribute to the blighting
of surrounding neighborhoods and to protect the integrity of
the City’s schools, churches, child care centers, parks and
playgrounds which are typically areas in which juveniles con-
gregate." Id.
Through the amortization provision, the AZO gave preex-
isting adult establishments not in compliance with the pro-
tected use separation requirements of sections 12.518(a) and
(b) until January 18, 2002—eight years from the date of the
AZO’s adoption—to either close or relocate to a conforming
location. Id.
Initially, section 12.518 did not allow the ZBA to authorize
a variance from the protected use separation requirements, but
on March 18, 1996, the City granted the ZBA that authority
by adding section 12.518(g), which provides:
[B]efore granting a variance from the separation
requirements . . . , the Board of Adjustment shall
find that thoroughfares, traffic circulation patterns,
structures or other natural or man-made geographic
or topographic features are likely to provide an ade-
quate measure of protection for the protected zoning
or use from any secondary effects of the adult estab-
lishment.
Charlotte, N.C., Ordinance 489 (Mar. 18, 1996), codified at
Charlotte, N.C., Code, app. A § 12.518(g) (2008).
6 INDEPENDENCE NEWS v. CHARLOTTE
B.
Independence News has operated an adult bookstore at its
present location in the City since 1993.1 In October of 2001,
the Charlotte-Mecklenburg Zoning Administrator sent Inde-
pendence News a notice, advising that Independence News’s
adult uses were in violation of the protected use separation
requirements of section 12.518(a) and reminding Indepen-
dence News that the AZO’s amortization provision required
Independence News to close or relocate to a conforming loca-
tion by January 18, 2002.
Similarly, Polo South has operated a live adult entertain-
ment establishment known as the "Carousel Club" at its pres-
ent location in the City since 1993. In October of 2001, the
Charlotte-Mecklenburg Zoning Administrator likewise sent
Polo South a notice, advising that Polo South’s adult uses
were in violation of the protected use separation requirements
of section 12.518(b) and reminding Polo South that the
AZO’s amortization provision required Polo South to close or
relocate to a conforming location by January 18, 2002.
One week before the amortization deadline, Independence
News and another affected business filed this action in federal
district court, challenging certain provisions of the City’s
Zoning Ordinance. A few days later, in another case challeng-
ing the AZO, the district court entered a preliminary injunc-
tion enjoining the City from enforcing the amortization
provision against any affected business pending final resolu-
tion. See Queen City Video & News, Inc. v. City of Charlotte,
No. 3:00CV618 (W.D.N.C. Jan. 16, 2002) (order granting
1
After moving to its current location in 1993, Independence News
began operations with an adult bookstore and an adult mini-motion picture
theater arcade. In 1999, the City of Charlotte adopted a Sexually Oriented
Business Ordinance, Charlotte, N.C., Ordinance 1341 (Aug. 23, 1999),
and consequently, Independence News ceased operating mini-motion pic-
ture theaters.
INDEPENDENCE NEWS v. CHARLOTTE 7
motion for preliminary injunction). The district court held this
case in abeyance pending the disposition of the Queen City
case.
Ultimately, the district court granted summary judgment in
favor of the City in Queen City on all claims except one, and
the parties in Queen City entered into a Stipulation of Volun-
tary Dismissal with Prejudice. The district court then acti-
vated this case, and the City consented to the intervention of
Polo South and two other affected businesses, agreeing that it
would not enforce the amortization provision until the matters
before the court were resolved.
The amended complaints filed by Independence News and
Polo South demanded a permanent injunction prohibiting the
City from enforcing the amortization provision against the
Appellants, a declaratory judgment that section 12.518 of the
City’s Zoning Ordinance violated their First Amendment
rights both facially and as-applied, and an order directing the
ZBA to consider whether the Appellants’ establishments actu-
ally generate adverse secondary effects against protected uses
when determining whether or not to grant a variance.
Relevant to this appeal, Independence News and Polo
South claimed that section 12.518 of the AZO is "unconstitu-
tional as applied against [Appellant]s based upon the evidence
. . . concerning the history of [Appellant]s’ businesses over a
nine year period which clearly shows that no adverse second-
ary effects to protected zoning and uses can be attributed to
[Appellant]s’ constitutionally protected adult business uses."
(J.A. at 30, 64.) In particular, Independence News and Polo
South alleged that, during the nine year period following the
AZO’s enactment, property values had held steady or gener-
ally increased in the area surrounding their establishments; no
sex related crimes had occurred in the area, and crime in gen-
eral had not increased in the area as of result of their adult
establishments; a number of businesses had located within the
area surrounding the Appellants’ adult establishments; and
8 INDEPENDENCE NEWS v. CHARLOTTE
residential construction was currently taking place within the
area surrounding Appellants’ establishments.
On June 3, 2004, the district court granted the City’s
motion for partial judgment on the pleadings and dismissed
the as-applied challenge to the secondary effects rationale of
the AZO, concluding that "it is . . . settled that [Appellants]
can not maintain an ‘as-applied challenge’ to [the] secondary
effects rationale of the AZO’s time, place, and manner restric-
tions." (J.A. at 85.) Then, on September 6, 2006, the district
court granted in part and denied in part the City’s motion for
partial summary judgment. As part of that order, the district
court granted summary judgment in favor of the City on the
Appellants’ allegation that the AZO is unconstitutional
because its variance provision does not allow the ZBA to con-
sider factual evidence concerning the secondary effects of a
particular adult business.
On May 9, 2008, Appellants filed an amended stipulation
of dismissal as to all outstanding claims and preserved those
resolved issues for this appeal. After a final judgment in favor
of the City on the remaining claims asserted by other affected
businesses, Appellants timely noticed an appeal, and we pos-
sess jurisdiction under 28 U.S.C.A. § 1291 (West 2006).2
2
We requested additional briefing on the issue of whether we have juris-
diction to hear adjudicated claims following a voluntary dismissal of the
remaining unadjudicated claims without prejudice. Compare, e.g., James
v. Price Stern Sloan, Inc., 283 F.3d 1064, 1065-70 (9th Cir. 2002) (finding
jurisdiction) with Chappelle v. Beacon Commc’ns Corp., 84 F.3d 652,
653-55 (2d Cir. 1996) (finding no jurisdiction). We, however, need not
reach this question today because the parties have satisfied us that the dis-
missal of the Appellants’ remaining claims after the grant of partial sum-
mary judgment in favor of the City was with prejudice.
INDEPENDENCE NEWS v. CHARLOTTE 9
II.
A.
Before us, Appellants contest only two of the district
court’s rulings. First, they contend that, in granting partial
judgment on the pleadings in favor of the City, the district
court incorrectly concluded that Appellants did not have the
right to maintain an as-applied challenge to the application
and enforcement of the AZO’s protected use separation
requirements and amortization provision to Appellants’ adult
establishments. Second, Appellants contend that the district
court erred in granting summary judgment to the City on
Appellants’ facial challenge to section 12.518(g). On this
claim, the Appellants take issue with the fact that section
12.518(g) does not require the ZBA to consider evidence that
Appellants’ particular adult establishments do not generate
adverse secondary effects in deciding whether to grant Appel-
lants variances should they ultimately seek them.
We review de novo the district court’s decision to grant
partial judgment on the pleadings in favor of the City, apply-
ing the same standard for Federal Rule of Civil Procedure
12(c) motions as for motions made pursuant to Rule 12(b)(6).
Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.
1999). And, we also review de novo the district court’s grant
of summary judgment in favor of the City, applying the same
Rule 56 standard as the district court was required to apply.
BB&T Corp. v. United States, 523 F.3d 461, 471 (4th Cir.
2008).
B.
We first turn to the district court’s grant of partial judgment
on the pleadings in favor of the City on Appellants’ as-applied
challenge to the AZO’s protected use separation requirements
and amortization provision.
10 INDEPENDENCE NEWS v. CHARLOTTE
In Ward v. Rock Against Racism, 491 U.S. 781 (1989), a
case involving a facial challenge to a content-neutral time,
place, and manner restriction, the United States Supreme
Court stated that "the validity of [the content-neutral time,
place and manner restriction] depends on the relation it bears
to the overall problem the government seeks to correct, not on
the extent to which it furthers the government’s interests in an
individual case. . . . [The restriction] is valid so long as the
city could reasonably have determined that its interests overall
would be served less effectively without the [restriction] than
with it." 491 U.S. at 801 (emphasis added). Based on this
statement, the district court concluded that Appellants could
not maintain an as-applied challenge to the secondary effects
rationale of the AZO and granted judgment on the pleadings
in favor of the City.
We agree with the district court that judgment in favor of
the City was proper on this claim. Like the ordinance in City
of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986),
which prohibited any adult movie theater from locating within
1,000 feet of any residential zone, single- or multiple-family
dwelling, church, park, or school, the AZO is properly ana-
lyzed as a time, place, and manner regulation because it does
not ban adult establishments altogether but merely requires
that such establishments be located certain distances from
protected uses. See id. at 46 (analyzing Renton ordinance as
a time, place, and manner restriction). And, just as the Renton
ordinance was aimed at the secondary effects of the adult the-
aters—that is, increasing crime rates, decreasing property val-
ues, and the decreasing quality of Renton’s
neighborhoods—rather than at the content of the films shown
at the theaters, the AZO is aimed at the secondary effects of
adult establishments, not the content of regulated speech, and
is thus properly deemed "content-neutral." See id. at 47-49
(analyzing the Renton ordinance as content-neutral).
Under Renton, content-neutral time, place, and manner
restrictions such as the AZO are "acceptable as long as they
INDEPENDENCE NEWS v. CHARLOTTE 11
are designed to serve a substantial governmental interest and
do not unreasonably limit alternative avenues of communica-
tion." Id. at 47. Such regulations must also be "narrowly tai-
lored" to achieve the substantial governmental interest. Ward,
491 U.S. at 798 ("[W]e reaffirm today that a regulation of the
time, place, or manner of protected speech must be narrowly
tailored to serve the government’s legitimate, content-neutral
interests but that it need not be the least restrictive or least
intrusive means of doing so."); see also Renton, 475 U.S. at
52 (emphasizing that the Renton ordinance was "‘narrowly
tailored’ to affect only that category of theaters shown to pro-
duce the unwanted secondary effects").
Moreover, when enacting an ordinance aimed at secondary
effects, a City must rely on "evidence of incidental adverse
social effect that provides the important governmental interest
justifying reasonable time, place and manner restrictions on
speech or expressive conduct." Mitchell v. Comm’n on Adult
Entm’t Establishments, 10 F.3d 123, 133 (3d Cir. 1993). In
enacting adult zoning ordinances, the City, however, is enti-
tled to "rely heavily on the experience of, and studies pro-
duced by, other cities and states, as well as on court opinions
from other jurisdictions," id. at 133, and need not, before
enacting such ordinances, "conduct new studies or produce
evidence independent of that already generated by other cit-
ies, so long as whatever evidence the city relies upon is rea-
sonably believed to be relevant to the problem that the city
addresses."3 City of Renton, 475 U.S. at 51-52.
3
These standards for reviewing challenges to content-neutral zoning
ordinances targeting the secondary effects of adult establishments apply
regardless of whether that challenge is styled as facial or as-applied. See
David Vincent, Inc. v. Broward County, 200 F.3d 1325, 1333 (11th Cir.
2000) (noting that, in as-applied challenge, "zoning ordinances that target
the social ills associated with adult entertainment are constitutional if they
are narrowly tailored to further a substantial government interest and allow
for reasonable alternative avenues of communication" (internal quotation
marks omitted)); One World One Family Now v. City & County of Hono-
lulu, 76 F.3d 1009, 1012 (9th Cir. 1996) (applying time, place, and manner
standard to an as-applied challenge to a content-neutral ordinance).
12 INDEPENDENCE NEWS v. CHARLOTTE
In this appeal, Appellants do not argue that the City’s ordi-
nance was not narrowly tailored to serve a substantial Gov-
ernment interest, that the City lacked an adequate evidentiary
basis for adopting the proposed legislation, or that the ordi-
nance did not provide for reasonable alternative avenues of
communication; in fact, Appellants concede that the AZO as
adopted was facially valid. Rather, Appellants seek to escape
the AZO’s amortization provision by arguing that, although "a
city must have latitude to experiment, at least at the outset,"
City of Los Angeles v. Alameda Books, 535 U.S. 425, 451
(2002) (Kennedy, J., concurring in the judgment), once the
data from the "experiment" has been collected, the Appellants
must have an opportunity to show that the data does not sup-
port the City’s original hypothesis—that adult establishments
generate adverse secondary effects. Thus, according to Appel-
lants, the AZO—a time, place, and manner restriction like the
one at issue in Renton—is unconstitutional as-applied to their
establishments because empirical data gathered in the years
after the passage of the ordinance in 1994 demonstrates that
their particular adult establishments have not generated
adverse secondary effects and therefore does not support the
original theoretical justification for passing the ordinance.
Appellants are quite right that the Supreme Court has indi-
cated that cities "‘must be allowed a reasonable opportunity
to experiment with solutions to admittedly serious prob-
lems.’" City of Renton, 475 U.S. at 52 (quoting Young v.
American Mini Theatres, Inc., 427 U.S. 50, 71 (1976) (plural-
ity opinion)); see also Alameda Books, 535 U.S. at 451 (Ken-
nedy, J., concurring in the judgment) ("[W]e have consistently
held that a city must have latitude to experiment, at least at
the outset, and that very little evidence is required.").
Although these statements conceivably could be read, as
Appellants read them, to imply that a city’s secondary effects
rationale for enacting a zoning ordinance like the AZO or the
Renton ordinance may be subject to a challenge based on
post-enactment data, we are not aware of—and Appellants do
not point us to—any Supreme Court or federal appellate court
INDEPENDENCE NEWS v. CHARLOTTE 13
opinion allowing such a challenge.4 Moreover, in the absence
of any clearly defined standards for judging such a post-
enactment First Amendment challenge—and Appellants pro-
vide none here—we are disinclined to grant Appellants relief
on this basis.
As discussed above, the applicable standard as it relates to
the secondary effects rationale requires only that a city show
that, "in enacting its adult [establishment] zoning ordinance,"
the city relied on evidence that is "reasonably believed to be
relevant to the problem [of secondary effects] that the city
addresses." City of Renton, 475 U.S. at 51-52 (emphasis
added). Thus, when cities exercise their power to zone the
location of adult establishments, they need not show that each
individual adult establishment actually generates the unde-
sired secondary effects. See Ward, 491 U.S. at 801 ("[T]he
validity of [an ordinance] depends on the relation it bears to
the overall problem the government seeks to correct, not on
the extent to which it furthers the government’s interests in an
individual case." (emphasis added)). And, it follows that the
City of Charlotte does not have to show that a particular adult
establishment generates adverse secondary effects each time
4
Appellants contend that Peek-a-Boo Lounge of Bradenton, Inc. v. Man-
atee County, 337 F.3d 1251 (11th Cir. 2003), supports their position. In
that case, the plaintiffs challenged two local ordinances; the first ordinance
imposed requirements on the physical layout of adult dancing establish-
ments, and the second was a general anti-public nudity statute, not a zon-
ing ordinance. The Eleventh Circuit reversed the district court’s grant of
summary judgment in favor of the County on the plaintiffs’ challenges to
both ordinances.
In Peek-a-Boo Lounge, the plaintiffs were challenging the county’s evi-
dentiary basis for enacting the ordinances and submitted pre-enactment
data to support their as-applied challenge to the anti-public nudity statute.
Id. at 1266-67, 1270-73. In the present case, however, Appellants do not
challenge whether the City had a sufficient evidentiary basis for enacting
the AZO, but challenge the City’s failure to consider evidence that was
gathered after the ordinance was passed and that appellants contend show
that their establishments have not in fact generated secondary effects.
Thus, Peek-a-Boo Lounge provides Appellants no support.
14 INDEPENDENCE NEWS v. CHARLOTTE
it seeks to enforce the AZO’s protected use separation
requirements and amortization provision against that adult
establishment. Cf. BZAPS, Inc. v. City of Mankato, 268 F.3d
603, 607 (8th Cir. 2001) ("[O]nce a city has validly forbidden
adult uses within a particular area, it may enforce that ordi-
nance against all adult uses in that area without showing that
a particular use will produce secondary effects."); David Vin-
cent, Inc. v. Broward County, 200 F.3d 1325, 1332 n.11 (11th
Cir. 2000) ("Courts have frequently upheld the application of
new zoning regulations to existing adult businesses with an
amortization period."); Ambassador Books & Video v. City of
Little Rock, 20 F.3d 858, 865 (8th Cir. 1994) (rejecting argu-
ment that application of ordinance to existing businesses vio-
lated the businesses’ First Amendment rights).
What matters here is whether the City had a sufficient evi-
dentiary basis for adopting the ordinance in 1994, see City of
Renton, 475 U.S. at 51-52 (looking to evidence of secondary
effects available to Renton at the time of enactment), and
Appellants concede that it did. Accordingly, the district
court’s grant of partial judgment on the pleadings must be
affirmed.
C.
We next turn to the district court’s grant of summary judg-
ment in favor of the City on Appellants’ claim that the AZO
is unconstitutional because its variance provision does not
require the ZBA to consider factual evidence concerning the
secondary effects of a particular adult business.5 In their com-
plaints, Independence News and Polo South maintain:
5
At oral argument, there was some suggestion that we should abstain
under Younger v. Harris, 401 U.S. 37 (1971), from addressing this issue
because the Appellants would have the opportunity to challenge the con-
stitutionality of the variance provision on appeal in state court should any
request for a variance be denied by the Zoning Board of Adjustment. As
noted by Appellants’ counsel, however, North Carolina law precludes the
INDEPENDENCE NEWS v. CHARLOTTE 15
The failure on the part of the City Council . . . to
allow the . . . Zoning Board of Adjustment to con-
sider factual evidence negating the presence or exis-
tence of adverse secondary effects a particular adult
[business] has on protected zoning or uses reflects
that the City is not interested in the factual data
available on the issue of the impact of secondary
effects on protected uses, and is instead only con-
cerned with the political considerations, moral objec-
tions and impermissible objections to
constitutionally protected speech and to the content
of speech, as opposed to a genuine concern for the
prevention and elimination of adverse secondary
effects, all in violation of the plaintiff’s right to the
exercise of free speech and the dissemination of con-
stitutionally protected material and the right of free
expression, as guaranteed by the First Amendment of
the United States Constitution and the Fourteenth
Amendment of the United States Constitution.
(J.A. at 30, 65.)
Zoning Board of Adjustment, as well as reviewing courts, from consider-
ing the constitutionality of the applicable zoning ordinance when deter-
mining whether to grant a variance. See 321 News & Video, Inc. v. Zoning
Bd. of Adjustment, 619 S.E.2d 885, 887-88 (N.C. Ct. App. 2005)(refusing
to consider petitioner’s arguments that zoning ordinance was unconstitu-
tional as applied because the Board failed to consider the evidence of the
lack of secondary effects violated the First Amendment). Under North
Carolina law, the appropriate avenue to challenge the constitutionality of
a zoning ordinance is to file a separate civil action in state court. Dobo
v. Zoning Bd. of Adjustment, 562 S.E.2d 108, 112 (N.C. Ct. App. 2002),
rev’d in part on other grounds, 576 S.E.2d 324 (N.C. 2003). Because there
is no ongoing state judicial proceeding in which Appellants can raise their
constitutional challenges, Younger abstention is inappropriate. See Ohio
Civil Rights Comm’n v. Dayton Christian Sch., Inc., 477 U.S. 619, 629
(1986) (noting that, for Younger abstention to be appropriate, an aggrieved
party must be able to raise constitutional claims in the state-court’s judi-
cial review of the administrative proceeding).
16 INDEPENDENCE NEWS v. CHARLOTTE
Thus, Appellants request an order directing the ZBA to
consider evidence on whether the Appellants’ uses actually
generate adverse secondary effects when deciding whether to
grant a variance.
Like the as-applied challenge to the AZO’s secondary
effects rationale, this claim seeks an avenue for the Appellants
to avoid the consequences of the AZO’s amortization provi-
sion. And, like that challenge, we think this claim too must
fail.
Considerations about the future play a large, if not central,
part in any zoning decision, and, as noted above, cities need
not wait for adult establishments to generate adverse second-
ary effects in their city before taking action to prevent them
from doing so in the future. City of Renton, 475 U.S. at 51-52.
Where, as here, a zoning ordinance legitimately targets sec-
ondary effects, it would make little sense to then require the
ZBA to consider evidence that a particular adult establishment
is not currently generating adverse secondary effects when
deciding whether to grant that establishment a variance. In
such a case, there is no assurance that the adult establishment
will not begin to generate secondary effects in the future.
And, if a variance were granted because an establishment is
not now generating secondary effects, rather than because
physical conditions provide an adequate buffer against any
secondary effects that might be generated in the future, there
would be no mechanism for addressing those effects if and
when they began to occur.
In sum, we simply do not see how the Constitution requires
a zoning board to consider whether an adult establishment
actually generates secondary effects when deciding whether
to grant that establishment a variance. Cf. David Vincent, Inc.,
200 F.3d 1325 at 1332 n.11 (noting that the Constitution does
not require either a grandfathering clause for existing non-
conforming businesses or a waiver provision allowing adult
businesses with community approval to locate outside of the
INDEPENDENCE NEWS v. CHARLOTTE 17
areas zoned for their use). This conclusion comports with our
conclusion above that the City may enforce the AZO against
an adult establishment without regard to whether that particu-
lar establishment generates the undesired secondary effects.
Thus, we conclude that the district court properly granted
summary judgment in favor of the City on this claim.
III.
For the foregoing reasons, the judgments of the district
court are hereby
AFFIRMED.
SHEDD, Circuit Judge, concurring:
I concur in the result reached by the majority because I
believe appellants’ claims are clearly foreclosed by Ward v.
Rock Against Racism, 491 U.S. 781 (1989).