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the board of supervisors may approve a conditional use permit for an adult theater or adult bookstore that is either: (1) an existing commercial establishment that is located in a commercial district; or (2) a commercial establishment that is proposed to be located in a commercial district. the board of supervisors shall, prior to the granting of any permit for an adult theater or adult bookstore, require the applicant to provide the following information:

the morse museum filed a complaint in federal district court, arguing that the board of supervisors had violated plaintiff’s constitutional rights to free speech and privacy under the first amendment, and that the provisions of the joint municipal zoning ordinance were facially invalid. the district court granted a permanent injunction, holding that the zoning ordinance was unconstitutional because of its vagueness, that it was facially invalid because it was content-based and applied only to adult-oriented businesses, and that the board of supervisors had violated plaintiff’s rights to free speech and privacy under the first amendment. the court concluded that the ordinance was unconstitutional because the “vague” language used in section 1301(a) failed to provide sufficient standards for enforcement. the court granted a permanent injunction against the enforcement of the ordinance, from which the board of supervisors has not appealed.

the court also held that the ordinance violated the first amendment and the fourteenth amendment by its selective enforcement against the plaintiff for its display of adult films in its museum, and by its failure to provide an adequate opportunity for plaintiff to present evidence of the unconstitutionality of the ordinance to the board of supervisors.

the court agrees with plaintiff that the ordinance at issue here is content-based. the district court found, and the court of appeals agreed, that the purpose of the ordinance was to limit the content of plaintiff’s speech. the court of appeals found that the ordinance was content-based because it was a “direct response to the content of plaintiff’s speech, in that it was designed to prohibit adult theaters from locating in a certain area of the township.” american amusement, 736 f.2d at 179. the court of appeals also found that the ordinance was content-based because it required “the board to consider whether an applicant’s proposed use of property is `compatible’ with the objectives of the zoning plan. such a provision may be used to discriminate based on the content of the speech involved.” id. at 180. the court of appeals did not address the municipality’s argument that the ordinance was content-neutral because it is a valid time, place and manner restriction.
the court’s recent holding in renton v. playtime theatres, inc., supra, 475 u.s. 41, 106 s. ct. 925, 89 l. ed. 2d 29 (1986) is in accord with the result reached by the court of appeals. there, the court held that a city’s zoning ordinance prohibiting adult theaters from locating within 1000 feet of a residential zone, church, or school is not unconstitutional even though it does not allow such a business to locate within the city limits at all. the court concluded that the first amendment does not guarantee the right to locate a business where and how one wishes, and that the city may place reasonable restrictions on the location of such businesses. id. at 54, 106 s. at 932. in so holding, the court rejected the argument that an ordinance’s restrictions on adult theaters must be unrelated to the suppression of speech.
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