Nicollet Council

studies adult

use issue

Moratorium lasts until March 27

By FRITZ BUSCH

Journal Staff Writer

NICOLLET -- The Nicollet City Council studied adult business issues at length at a work session Wednesday night.

The council did not take public input at the meeting. It has listened to formal and informal public comment on issues since The Mirage adult entertainment club opened several months ago, just west of the downtown area.

Prior to the meeting, the council reviewed sections 4.04-4.07 of Gerard's Local Regulation of Adult Businesses, the Report of the Attorney General's Working Group on the Regulation of Sexually-Oriented Businesses and several memos from Nicollet City Administrator Dan Wietecha.

Attorney Ryan Magnus of the Brandt Law Office in St. Peter attended the meeting on behalf of the city.

The current moratorium on adult businesses in Nicollet expires March 27. It could be extended at that time, Wietecha said.

The council discussed specific recommendations regarding definitions of adult uses, location requirements, licensing, spacing requirements, and other issues that would be applicable to new adult businesses in town.

Adult business issues the council brought up included parking, lap dancing, touching, prostitution, fighting, public urination, loud noise in the early hours of the morning, garbage, health, safety, and falling real estate values.

The council plans to eventually draft ordinances to control future adult businesses. The process require public hearings.

The council seemed to agree that a 500-foot distance between future adult businesses and residences was workable for a future ordinance.

"I have great confidence that this council can write a wonderful ordinance to deal with adult businesses," Wietecha said. "Nothing final is needed tonight. The council has heard from many citizens about the issues at council meetings and informally."

Magnus told the council how he thought it should create an ordinance.

"You want something that is easily understood," Magnus said. "Do something that is reasonable for Nicollet."

Wietecha suggested the council create very specific license criteria for adult business licenses. He suggested requiring licenses for the business itself, the manager and entertainers.

In his memos to the council, Wietecha said that although zoning regulations may be most appropriate for locational and land use concerns, much of the city's concerns for protecting the health, safety, and welfare may also be addressed through operational controls.

He cited Minnesota Statute 412.221 that authorizes municipal licensing of theatrical performances, amusements, or shows of any kind, and public dances and dance halls.

Any licensing must be reasonable and meet due process requirements. With potential First Amendment concerns, licensing must not be a prior restraint.

Three legal requirements for a licensing system are 1) strict limits on the discretion of the licensing official; 2) a time limit for issuing the license during which time the status quo is maintained, and 3) prompt judicial review for alleged errors.

Licenses can address location requirements, design standards, inspection by police, no-loitering policies, age restrictions, lighting, criminal offense, and sexual contact.

Although these may be addressed by the zoning ordinance, nuisance ordinance, or criminal code, licensing can be an additional element of enforcing compliance with such ordinances by setting clear suspension and revocation standards.

Licensing would allow businesses that create no problems to continue to operate but would suspend or revoke licenses for businesses where problems are recurring.

Wietecha outlined a process called amortization, which hastens the disappearance of non-conforming uses.

Amortization balances the property owner's investment and expectation of a return against the public's concerns for the neighborhood. The property owner has invested money in land and building; over some period of time, the property owner has recouped all or most of their investment.

This is balanced against the degree of public harm created by a non-conforming use. The greater the investment, the longer the amortization period; the worse the harm, the shorter the period.

The amortization period need not allow the property owner to fully recoup their entire investment. The statue expressly permits use of amortization for non-conforming adult businesses.

An attachment to the amortization memo cited an excerpt from AVR, Inc. v City of St. Louis Park (1998).