Chicago Joe's Tea Room, LLC et al v. The Village of Broadview, et al

Filing 67

MEMORANDUM Opinion and Order. Signed by the Honorable Joan B. Gottschall on 9/11/2008.(ep, )

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION CHICAGO JOE'S TEA ROOM, LLC and PERVIS CONWAY, Plaintiffs, v. VILLAGE OF BROADVIEW et al. Defendants. ) ) ) ) ) ) ) ) )

Case No. 07 C 2680 Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER Before the court are cross-motions for summary judgment and cross-motions to strike certain portions of the parties' Rule 56.1 statements of fact. For the reasons stated below, defendants' motion to strike [38] and plaintiffs' motion to strike [45] are granted in part and denied in part; the defendants' motion for summary judgment [26] and the plaintiffs' motion for partial summary judgment [29] are granted in part and denied in part. I. BACKGROUND1 This case concerns a zoning dispute over property located in the Village of Broadview, Illinois (the "Village"); specifically, it concerns a disagreement over the constitutionality of the Village's zoning restrictions on adult use facilities. Pervis Conway ("Conway") owns a parcel of land at 2850 Indian Joe Road in the Village, which he is under contract to sell to Chicago Joe's Tea Room, LLC ("Chicago Joe's").2 The

Facts are taken from the parties= Rule 56.1 statements of material facts and are undisputed unless otherwise noted. Facts specific to a particular legal claim are addressed in the relevant section below. 2 The current state of the contract and ownership is unclear from the record. A letter between counsel for Chicago Joe's and Conway, dated April 30, 2007, indicates that the closing was set for June 30, 2007, that Chicago Joe's had deposited in excess of $100,000 in non-refundable

1

parcel of land is located in the Office and Industrial District (the "O/I district"), which is one of the classifications in the Village's comprehensive zoning code ("Zoning Code"). The stated purposes of the Zoning Code include: To promote and protect the public health, safety, morals, comfort and general welfare of the people; To promote the character and the stability of the residential, business and manufacturing areas within the village of Broadview and to promote the orderly and beneficial development of such areas; To prohibit uses, buildings or structures incompatible with the character of development or intended uses within specified zoning districts.3 The O/I district is a zone that provides opportunities for office and light industrial uses in an environment where setbacks and other requirements are designed to encourage quality development and minimal impact on the adjacent non-industrial uses. Certain land uses in the O/I district are, pursuant to § 10-7-4 of the Zoning Code, allowed only with prior permission of the Village board of trustees. The Village must hold a public hearing on such special use applications. The trustees may authorize the special use only if it: (1) is necessary for the public convenience at the location; (2) is designed, located and proposed to be operated so that the public health, safety and welfare will be protected; and (3) will not cause substantial injury to property values. Chicago Joe's wants to operate an adult use business featuring semi-nude dancing and a restaurant that sells liquor at 2850 Indian Joe Road, in the O/I district. Certain types of businesses, including restaurants, banks, animal hospitals, dry-cleaning establishments, daycare

earnest money and had agreed to a purchase price of $1,350,000. See Letter to Steven Luzbetak, Esq., attached to Verified Compl. 3 Zoning Code § 10-1-2(A), (C), (H), attached as Ex. 3A to Defs.' Rule 56.1 Statement of Material Facts. 2

facilities, and adult use facilities, are allowed in the O/I district only as a "special use."4 On December 22, 2006, the plaintiffs, Chicago Joe's and Conway (collectively the "Plaintiffs"), submitted an application seeking "[p]ermission to operate an adult use facility in all adult use categories as defined in the Code of Ordinances of the Village of Broadview, permission to operate a restaurant with the ability to sell alcohol, [and] permission to operate 24 hours per day ­ seven days per week[.]"5 In addition to the "special use" requirements for location in an O/I zone, adult uses are also subject to certain other restrictions under § 10-4-6(D)(11), which, as of the time of Chicago Joe's zoning application, read: Adult businesses are subject to the following: a. It shall be unlawful for any adult business to sell, distribute, or permit beer or alcoholic beverages on the premises. b. No merchandise or pictures of the products or entertainment on the premises shall be displayed in window areas or any other exterior area of the building or site that can be seen by the public from the outside of the building. c. Only one adult business shall be permitted per block face.

d. Adult uses must be located a minimum of one thousand feet (1,000') from the property boundaries of any school, daycare center, cemetery, public park, forest preserve, public housing, and place of religious worship. e. Adult uses must be located in a freestanding building of less than twenty thousand (20,000) square feet. On February 28, 2007, the Village Planning and Zoning Commission (the "Commission") conducted a public hearing on the Plaintiffs' zoning application during which the Commission heard extensive public testimony. At the conclusion, Commissioner Keehn moved to deny the Plaintiffs' application "due to the zoning ordinance [which] set[s] forth the following
4

Adult uses are allowed in the M--Manufacturing District as "conditional uses" as long as they meet the requirements of § 10-4-6(D)(11). 5 Defs.' Rule 56.1 Statement of Material Facts Ex. 3B (zoning application form). 3

standards: It shall be unlawful for any adult business to sell, distribute or permit beer or alcoholic beverages on the premises."6 The motion was passed unanimously and the Commission recommended, in a written report to the Village Board of Trustees that mirrored the motion language, that adult use be denied. The Board of Trustees voted to deny permission for adult use at 2850 Indian Joe Road on March 5, 2007, concurring with the Commission's conclusions. On April 16, 2007, The Village Board of Trustees amended certain sections of the Zoning Code, including parts of § 10-7-4 and § 10-4-6(D)(11). The Zoning Code now requires that "adult uses must be located a minimum of one thousand feet (1,000') from the property boundaries of any school, daycare center, cemetery, public park, forest preserve, public housing, residentially zoned property, and place of religious worship." Zoning Code § 10-4-6(D)(11)(d) (emphasis added to indicate amendment). The 2850 Indian Joe Road site is not located more than 1,000 feet from residentially-zoned property. On May 11, 2007, the Plaintiffs filed suit against the Village and thirteen individuals, asking for declaratory and injunctive relief and asserting that the Zoning Code is unconstitutional. The individual defendants are: Defendant Henry Vicenik ("Vicenik"), who was the mayor7 of the Village at all times relevant; Defendants Fitzgerald Mullins ("Mullins"), James Johnson, Jr. ("Johnson, Jr."), Robert Payne ("Payne"), Michael Tyl ("Tyl"), John Ferguson ("Ferguson"), and Sam D'anza ("D'anza"), who were Village trustees; and Defendants Beverly Keehm "(Keehm"), Jury Abraham ("Abraham"), Billy Davis ("Davis"), Juanita Hinton Johnson ("Johnson"), Minnie Reese ("Reese"), and Ray Donato ("Donato"), who were Village

Id. Ex. 3C at 102:18-24. In some documents, Vicenik is called the Village President. It is unclear if he holds two positions, President of the Village Board of Trustees and Village Mayor, or if one of the titles was used in error.
7

6

4

commissioners. The Village and the eleven individual defendants are collectively referred to as the "Defendants." II. MOOTNESS After an initial review of the parties' summary judgment briefs and statements of fact, the court issued a minute order requesting further briefing. The court noted that the Plaintiffs filed this lawsuit for injunctive relief on May 11, 2007. The Village Board of Trustees amended certain sections of the Zoning Code on April 16, 2007, including § 10-4-6(D)(11)(d). The original version of § 10-4-6(D)(11)(d) provided that "adult uses must be located a minimum of one thousand feet (1,000') from the property boundaries of any school, daycare center, cemetery, public park, forest preserve, public housing, and place of religious worship." The amended version included a restriction that adult uses also be located greater than 1,000 feet from "residentially zoned property."8 The record showed that the property at 2850 Indian Joe Road, the proposed location of Chicago Joe=s Tea Room, is less than 1,000 feet from residentiallyzoned property. In light of the Plaintiffs' request for injunctive relief, the court requested further briefing on whether the amendment mooted the controversy. The Village argues that rendering a decision on a Zoning Ordinance that is no longer in effect is inappropriate because such a decision would be merely advisory and the amendment has mooted the plaintiff's request for injunctive relief based on the defunct ordinance. See, e.g., Rembert v. Sheahan, 62 F.3d 937, 940 (7th Cir. 1995) ("The complete repeal of a challenged statute naturally renders a request for an injunction against application of that statute moot."). The Plaintiffs argue that the amendment does not remove the harm alleged; in fact, it exacerbates the unconstitutionality of the Village's Zoning Code by adding additional restrictions to the Other subsections of § 10-4-6(D)(11), including the prohibition on adult businesses selling or distributing alcohol, were not amended. 5
8

placement of adult use facilities. See, e.g., Ne. Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 (1993) (finding that an amendment to an ordinance does not render a plaintiff's claim moot where the new ordinance disadvantages the plaintiff in the same fundamental way as the original ordinance). They also argue that the amendment fails to cure the unconstitutional prior restraints imposed by the Zoning Code's requirement to obtain a special or conditional use permit, and that its claims for declaratory relief and damages are not rendered moot by the amendment. Curiously, neither party's argument addresses the metaphorical "elephant in the room," namely that the amendment seems to have been promulgated specifically to target Chicago Joe's and prevent it from ever operating at its chosen location. The court's own research has uncovered a factually similar case. See 754 Orange Ave., Inc. v. City of West Haven, 761 F.2d 105 (2d Cir. 1985). In 754 Orange Ave., the plaintiff ("754 Orange") applied for a preliminary injunction enjoining the city from enforcing its zoning and licensing ordinances against it and ordering the city to issue a building permit. Id. at 107. On February 24, 1984, 754 Orange applied for a building permit to renovate a building in order to conduct the business of an adult bookstore. Id. at 108. The zoning ordinances did not have a special classification for adult use and the business was arguably considered a "commercial recreational facility." Id. The applicable zoning ordinance at the time of the application (§ 32-2.7) stated that "[n]o commercial recreational facility shall be located on a property within a one-thousand (1000) foot radius of a park, playground or public or private primary or secondary school." Id. at 109. 754 Orange's premises were between 1,000 and 1,500 feet from the nearest school, park, or playground. Id. The city denied the permit without explanation. Id. On May 23, 1984, the district court ordered the city to issue a permit. Id. The city did not comply. Id. However, on June 15, 1984, the city

6

amended § 32-2.7, increasing the minimum distance required from 1,000 feet to 1,500 feet, thereby making it categorically impossible for 754 Orange to be eligible for a permit at its current location. Id. Following the amendment, the city moved to dismiss the case based on mootness due to 754 Orange's ineligibility for a permit under the amended section. Id. The court denied the motion, finding that the evidence suggested that the zoning amendments were made "in order to frustrate plaintiff's sale and display of sexually explicit material," which raised "a serious due process question." Id. On appeal, the Second Circuit, in part, held that "section 32-2.7 is impermissible as enacted, because its adoption strongly suggests that it was aimed solely at 754 Orange." Id. at 113. It found that the city amended the ordinance to include the premises owned by 754 Orange only after it "learned that 754 Orange's leased premises [are] beyond 1,000 feet from any school, park, or playground." Id. It reasoned that, despite an applicant's general lack of vested rights in existing zoning classifications under Connecticut law, courts "will not allow changed building zone regulations to act as a bar to a building project where it would be inequitable to do so." Id. The court noted that this principle of "equity of notice" was a legitimate concern in a First Amendment case. Id. (citing Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 80 (1976), wherein the U.S. Supreme Court observed that an amended zoning regulation was not aimed at suppression of free expression where "[t]he ordinance was already in existence, and its purposes clearly set out, for a full decade before adult establishments were brought under it"). The Second Circuit therefore refused to consider the amended ordinance because the city "did not `adequately justif[y] its substantial restriction of protected activity' in a manner sufficient to justify its ex post facto treatment of Orange Avenue's contemplated use." Id. (quoting Avalon Cinema Corp. v. Thompson, 667 F.2d 659, 662 (8th Cir. 1981)).

7

Illinois also recognizes that property owners may, under certain circumstance, acquire a vested right to the continuation of an existing zoning classification, despite the general rule to the contrary. 1350 Lake Shore Assocs. v. Healey, 861 N.E.2d 944, 950 (Ill. 2006). In order to come within the purview of the exception, a land owner must have made a "`substantial change of position, [such as] expenditures or incurrence of obligations made in good faith by an innocent party under a building permit or in reliance upon the probability of its issuance[.]'" Id. (quoting Fifteen Fifty N. State Bldg. Corp. v. City of Chicago, 155 N.E.2d 97 (1958)). The exception only applies, however, where an applicant reasonably relies on the legality of the ordinance and does not apply where a land owner unreasonably relies on an invalid ordinance. Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 849 (7th Cir. 2007); City of Elgin v. All Nations Worship Ctr., 860 N.E.2d 853, 857 (Ill. App. Ct. 2006). In both Petra and All Nations, plaintiff churches had purchased property in an area that was not zoned in a manner that allowed them to operate. Petra, 489 F.3d at 847; All Nations, 860 N.E.2d. at 665. The municipalities amended the zoning ordinances to cure the perceived constitutional problems, which eliminated the churches' ability to locate in their chosen area. Petra, 489 F.3d at 848; All Nations, 860 N.E.2d. at 666. The courts rejected the churches' arguments that they had a vested interest in continuing to operate based on reliance on the facial invalidity of the zoning ordinance. Petra, 489 F.3d at 848; All Nations, 860 N.E.2d. at 669. In Petra, the Seventh Circuit noted that there was no basis "for the proposition that the federal Constitution forbids a state that has prevented a use of property by means of an invalid (even an unconstitutional) enactment to continue to prevent that use by means of a valid one." Petra, 489 F.3d at 849. In All Nations, the Illinois Appellate Court reasoned that "vested rights are acquired by attempting to comply with an ordinance as written. . . . Here, however, All Nations proceeded in violation

8

of the zoning ordinance as written [under the assumption it would be found invalid]." All Nations, 860 N.E.2d. at 668 (emphasis in original). The Seventh Circuit recently reaffirmed its rejection of "the notion that a property owner may rely on purported defects in prior versions of the law as the springboard to claim a vested interest in property use for which it never obtained permission." Gen. Auto Serv. Station v. City of Chicago, 526 F.3d 991, 1005 (7th Cir. 2008) (discussing the similarities of its holding in Petra and the Illinois Appellate Court=s holding in All Nations). Thus, the ability of a municipality to adopt a curative amendment to an invalid zoning ordinance and thereby attempt to moot an applicant's claim is beyond question. The issue, therefore, is whether the Village's amendment of § 10-4-6(D)(11)(d) was intended to be curative. The Defendants' own arguments seem to belie such a finding. For example, the Defendants contend that the pre-amendment version of § 10-4-6(D)(11)(d) was constitutionally valid as a content-neutral "time, place, and manner regulation." See Defs.' Mem. in Supp. of Mot. for Summ. J. at 8 (citing a version of the Zoning Code promulgated in November 2001 in support); id. (citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 54 (1986), which concluded that an ordinance that prohibited adult movie theatres within 1,000 feet of any residential zone, single or multi-family dwelling, church, park, or school was constitutional); Defs.' Rule 56.1 Statement of Material Facts, Ex. 3A (Zoning Code, dated November 2001). Leaving aside for the moment the issue of whether the Defendants' argument is correct, the amendment itself also suggests that the Village was not attempting to rectify any perceived constitutional infirmity. For example, the amended § 10-4-6(D)(11)(d) further restricted the availability of land for adult use, which is the opposite result to that expected of an attempt to rectify an ordinance that impermissibly infringed on protected speech. The court therefore

9

concludes that the Village was not attempting to rectify any weaknesses in its Zoning Code when it extended the reach of § 10-4-6(D)(11)(d). In reaching this conclusion, the court is cognizant of the equities. The amendment made Chicago Joe's categorically ineligible for a permit. Pls.' Statement of Facts ¶ 36. Chicago Joe's entered a contract to purchase the property from Conway after concluding that the location met with the requirements of § 10-4-6(D)(11)(d) in that it was "a minimum of one thousand feet (1,000') from the property boundaries of any school, daycare center, cemetery, public park, forest preserve, public housing, and place of religious worship." See id. ¶ 35. Chicago Joe's spent considerable time, effort, and money to locate a suitable property and secure the contract. See Letter to Steven Luzbetak, Esq., attached to Verified Compl. (detailing terms of contract and non-refundable earnest money paid). After Chicago Joe's applied for a permit and a public hearing was held, it came to light that Chicago Joe's chosen location met the requirements of the original § 10-4-6(D)(11)(d), but was within 1,000 feet of family homes. Consequently, the Village amended its zoning ordinance to exclude adult use facilities from locations that were within 1,000 feet of homes, which coincidentally included the proposed site for Chicago Joe's. The record does not disclose that the Village conducted any studies on the effect of adult use facilities within 1,000 feet of residential neighborhoods and the amended ordinance contains no findings to explain the rationale for the amendment.9 In light of these facts, the adoption of the amendment strongly suggests that it was not intended to be curative, but rather was aimed solely at Chicago Joe's, similar to the targeted amendment in 754 Orange Ave. Under these circumstances, the reasoning of Petra and All

9

Of note, neither the original nor the amended Zoning Code contains legislative findings to support any restrictions on adult use. This absence of findings is a further reason why the amendment does not moot the Plaintiffs' claims. See § IV(B)(2) infra. 10

Nations is inapplicable. Pursuant to the reasoning of the Second Circuit in 754 Orange Ave., the court holds that Chicago Joe's had acquired a vested right in the continuation of § 10-46(D)(11)(d) during the pendency of its application.10 Therefore, the fact that Chicago Joe's could not, under the current version of § 10-4-6(D)(11)(d), occupy 2850 Indian Road is irrelevant to the merits of the summary judgment motions, to which the court now turns. III. MOTIONS TO STRIKE The Defendants move to strike portions of the Plaintiffs' Local Rule 56.1(a) Statement of Facts for lack of reference to the record and reliance on inadmissible evidence. The Plaintiffs move to strike the affidavit of Michael Hoffman, attached as Exhibit 7 to the Defendants' Local Rule 56.1(b)(3)(B) Statement of Additional Facts, for failure to establish the foundation for the opinions and conclusions. A. The Defendants' Motion To Strike [38] 1. Lack Of Reference To The Record

The Defendants argue that several paragraphs of the Plaintiffs' Statement of Material Facts violate Local Rule 56.1 because they lack a reference to the record. The Rule requires the moving party to submit a statement of material facts that "consist[s] of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph." L.R. 56.1; see also Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997) (emphasizing the need for concrete evidence in support of asserted material facts). The court's standing order emphasizes this requirement. See Standing Order Regarding Motions for Because the constitutionality of other amended sections, such as § 10-7-4, has been challenged, the court restricts this holding to § 10-4-6(D)(11)(d). Where a constitutional challenge has been raised, Broadview had a right, pursuant to the reasoning in Petra, to attempt to cure any infirmities through post-hoc amendments. 11
10

Summary Judgment ("This statement shall consist of short numbered paragraphs, including within each paragraph specific references to affidavits, parts of the record, transcript excerpts and other supporting material." (emphasis in original)), http://10.205.15.104/JUDGE/GOTTSCHALL/jbgstnd.htm. The standing order states that "if a movant submits a 56.1(a)(3) statement that does not include specific evidentiary support for a given purported `material fact,' thereof, that `fact' may be disregarded." Id. a. Paragraphs 33, 39, and 55

The Plaintiffs admit that they failed to cite to the record in two instances, specifically paragraphs 3911 and 55,12 and the court finds that paragraph 3313 suffers from a similar infirmity. They reason that the paragraphs should, nevertheless, not be stricken because they "do not contain legal conclusions but set forth facts entirely within the purview of Defendants which could be answered without placing any hardship on the Defendants to ascertain their accuracy." Pls.' Resp. to Defs.' Mot. to Strike at 5. This statement is fundamentally flawed. A motion for summary judgment is no place for a party to be conducting discovery. The Plaintiffs should have obtained evidence supporting the statements long ago by means of requests to admit or deposition testimony. A party's failure to obtain the necessary discovery it needs to prove its case does not excuse non-compliance with the rules of the court. See Int'l Union, United Auto, Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 886 F.2d 871, 886 (7th Cir. 1989) ("[The court's] inquiry must be based on the underlying premise that the "No other property on the same block face as the Subject Property is currently proposed to be used for an adult business as defined by the Village Code." Pls.' Statement of Material Facts ¶ 39. 12 "The statements recited [in paragraph 54] and contained in the Chicago Tribune article attributed to Vicenik are true and accurate recitations of the statements made by Vicenik on March 5, 2007 with regard to Plaintiffs' proposed adult business." Id. ¶ 55. 13 "Exhibit L is a true and accurate copy of the Village's Official Zoning Map as it existed at all relevant times." Id. ¶ 33 12
11

creation of a record adequate to meet legal challenges is the responsibility of the parties litigating the case."). Paragraphs 33, 39 and 55 are therefore stricken for failure to comply with Rule 56.1(a)(3).14 b. Paragraph 32 And Exhibit L

The Defendants argue that paragraph 32 should be stricken because it is supported by Exhibit L, which is a reduced-size black-and-white reproduction of the Official Zoning Map from which the statements asserted by the Plaintiffs "cannot be substantiated." Defs.' Mot. to Strike at 2. The argument is frivolous given that the Defendants submit the exact same map (albeit in color) as part of their own record. See Defs.' Statement of Material Facts Ex. 3A, pt. 4 of 4. The court will not grant a motion to strike for such a hyper-technical reason. 2. Inadmissible Evidence

The Defendants move to strike multiple statements of fact that cite to allegedly unauthenticated and/or inadmissible exhibits in violation of Rule 56(e). As the Plaintiffs point out, Rule 56(e) applies only to exhibits to an affidavit. In many cases, the Plaintiffs submit "free-standing" exhibits that are not associated with any affidavit, rendering Rule 56(e) inapplicable. However, this begs the question of whether the exhibits should have been attached to an affidavit. In the words of the Seventh Circuit: It bears repeating that the purpose of summary judgment is to determine whether there is any genuine issue of material fact in dispute, and, if not, to render judgment in accordance with the law as applied to the established facts. The facts must be established through one of the vehicles designed to ensure reliability and veracity ­ depositions, answers to interrogatories, admissions and affidavits. When a party seeks to offer evidence through other exhibits, they must be identified by affidavit or otherwise made admissible in evidence. Some of the Defendants' own statements similarly lack citation to the record, and the court has disregarded those paragraphs for non-compliance with the rules. See, e.g., Defs.' Rule 56.1(b)(3) Resp. to Pls.' Statement of Facts ¶ 56 (no citation to the record to support dispute of fact in violation of Local Rule 56.1(b)(3)(B)). 13
14

Martz v. Union Labor Life Ins. Co., 757 F.2d 135, 138 (7th Cir. 1985) (emphasis added). Thus, to the extent that an exhibit is not independently admissible (for example, self-authenticating documents as provided by Federal Rule of Evidence 902 or information subject to judicial notice), a foundational affidavit is required (in which case the requirements of Rule 59(e) would be triggered). The Defendants' reliance on Rule 56(e) skips over the preliminary evidentiary questions of authenticity and admissibility. In doing so, they assert objections to 22 of the 25 exhibits.15 The exhibits are, for the most part, public documents or provisions of the Village's ordinance which are admissible in substance without a foundational affidavit under Federal Rules of Evidence 201 or 902 or Federal Rule of Civil Procedure 44. Other materials, including documents authored by the Village Zoning Board, are admissions under Federal Rule of Evidence 801(d). Therefore, the Defendants' global Rule 56(e) objection to the exhibits is overruled. The Defendants further assert that: (1) paragraphs 38 and 39 inappropriately cite exhibit N as support; and (2) paragraphs 52 and 54 impermissibly rely on hearsay within exhibit R. Paragraph 39 has already been stricken for failure to cite the record. Paragraph 38 states: At the time Chicago Joe's submitted its application for a special use permit and at the time the Village Board denied Chicago Joe's request for a special use permit, no other existing or proposed adult use was located on the same block face as the Subject Property. See Affidavit of Joseph A. Inovskis attached as Exhibit N to Plaintiffs' Summary Judgment Documents. Pls.' Statement of Material Facts ¶ 39. The problem, as the Plaintiffs concede, is that the affidavit does not establish the affiant's competency to testify as to any proposed uses.

15

The Defendants originally objected to an additional exhibit, Exhibit C, but withdrew that objection in their reply, conceding that it was substantiated by the affidavit of Joseph Inovskis, which includes three exhibits that are also separate exhibits. 14

However, Inovskis does establish that he had personal knowledge of the existing uses; therefore, paragraph 38 will be stricken only to the extent it references "proposed" adult use. Paragraphs 52 and 54 are based on statements of Village officials published in a newspaper article. The Defendants contend the paragraphs rely on hearsay. Paragraph 52 states: On March 6, 2007, the Chicago Tribune published an article written by Joseph Ruzich wherein Vicenik is quoted as saying with regard to Plaintiffs' proposed adult business: "I am not in favor of this business in our community." See Chicago Tribune article dated March 6, 2007 attached as Exhibit R to Plaintiffs' Summary Judgment Documents. Id. ¶ 52. The paragraph does not ask the Defendants to admit the truth of what the article says Vicenik says; it asks to admit that the Chicago Tribune published an article with specific content. There is no hearsay implication and the motion to strike on this basis is denied. Paragraph 54 states: "The Chicago Tribune article also states that [Mayor] Vicenik stated he was confident the Village would turn down future requests for such clubs. See Exhibit R to Plaintiffs' Summary Judgment Documents." The Plaintiffs contend that Mayor Vicenik's statement is not hearsay because it is an admission under Federal Rule of Evidence 801(d)(2), or, alternatively, it is not offered for the truth but to show the reasons for denying the special use permit were pretextual. The court agrees that the Mayor's statement could be admissible at trial as an admission; therefore, the motion to strike paragraph 54 is denied. B. The Plaintiffs' Motion To Strike [45] The Plaintiffs contend that the affidavit of Michael Hoffman ("Hoffman"), submitted as a rebuttal affidavit to the Plaintiffs' expert affidavit, does not comport with the requirements of the Federal Rules as applied to expert affidavits. Rule 56(e) provides in part that: A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit. 15

Fed. R. Civ. P. 56(e)(1); see also Rosemary B. v. Bd. of Educ. of Cmty. High Sch. Dist. No. 155, 52 F.3d 156, 159 (7th Cir. 1995) (upholding the district court=s decision to strike plaintiff=s affidavit where it was Aconclusory and not based on personal knowledge, and [the] attached exhibits [we]re unauthenticated@); Bee v. Local 719, United Auto Workers, 744 F. Supp. 835, 836 (N.D. Ill. 1990) (granting a motion to strike where the affidavit statements were based on hearsay, not personal knowledge). Thus, A[a]ffidavits . . . create an issue of fact only to the extent that they provide evidence that would be admissible if offered live on the witness stand.@ Watson v. Lithonia Lighting, 304 F.3d 749, 751-52 (7th Cir. 2002); see also Stinnett v. Iron Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002) (noting that when considering evidence submitted on summary judgment, "[t]he evidence need not be admissible in form (for example, affidavits are not normally admissible at trial), but it must be admissible in content"). Expert testimony is admissible at trial when it comports with Rule 702, which provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993) (requiring the court to undertake a gatekeeping role whereby it ensures that expert testimony "rests on a reliable foundation and is relevant to the task at hand"). These reliability requirements are read into the affidavit requirements of Rule 56(e). See, e.g., U.S. v. Wittje, 333 F. Supp. 2d 737, 742 (N.D. Ill. 2004). The Plaintiffs argue that Hoffman's affidavit is devoid of any facts or data to explain how Hoffman reached his opinions and that this renders the affidavit, and therefore the opinions, 16

inadmissible. The Defendants contend that, under Federal Rule of Evidence 705, an expert need not disclose the underlying facts or data when testifying. They state that "[t]here is no requirement that an expert set forth the detail of any calculations leading to his or her conclusions in order for his or her affidavit to support a motion for summary judgment." Defs.' Resp. at 2. Although they may be correct that calculations are not per se mandated by the relevant case law, reasons underlying the opinion are. See, e.g., Nat'l Diamond Syndicate, Inc. v. United Parcel Serv., Inc., 897 F.2d 253, 260 (7th Cir. 1990) (finding summary judgment inappropriate on the basis of a conclusory statement in an affidavit because "if the affiant offers an expert opinion, she must give reasons for the opinion, not merely state her conclusions") (citing Mid-State Fertilizer Co. v. Exchange Nat'l Bank of Chicago, 877 F.2d 1333, 1339 (7th Cir. 1989)). Therefore, the court looks to the affidavit to determine if Hoffman's reasons are clearly laid out. Hoffman disagrees with two of the plaintiff's expert's conclusions, namely that only three parcels of land in the Village met the Village's zoning requirements for adult use before April 16, 2007 and that not one parcel could be used for adult use after the zoning ordinance revisions in April 16, 2007. In rebuttal of the conclusions, Hoffman opines that "approximately 38 acres or 3% of the Village was available [before April 16, 2007] for possible development of an adult use under the regulations in effect at the time Chicago Joe's applied for a special use permit" and that "roughly ten parcels along 25th Avenue" would be potential locations after April 16, 2007. Hoffman Aff. ¶¶ 6, 8. In support of these conclusions, he relies on Exhibit 2 to

17

the affidavit, an August 27, 2004 memorandum from Hoffman to the Village Deputy Clerk and a hand-drawn map of the Village.16 The August 27, 2004 memorandum explains that the map "applies the state standards to the Village of Broadview," where the state standards are that "any adult use be located 1,000 [feet] away from a cemetery, school, day care center, public park, forest preserve, public housing, or place of religious worship." However, the hand-drawn map does not disclose its scale and contains no measurements and few property line markers by which the court can ascertain how Hoffman came to the conclusion that 3%, 38 acres, or ten lots are or were available for adult use. The affidavit does not explain the methodology used or the basis on which he made his calculations. The lack of precision in both the exhibit and the affidavit renders Hoffman's determination regarding the amount of land available questionable. Absent information on how he went about calculating the number of lots or available acreage, his conclusion, namely that the Plaintiffs' expert's opinion of the number of sites available is wrong, simply cannot be considered sufficiently reliable. Rule 702 and Daubert require more than a rough sketch and an unsubstantiated number to support of an expert opinion. However, Hoffman's opinion as to the validity of criteria employed by Plaintiffs' expert may stand, as it relies only on his expert knowledge, which is adequately identified in his resume.17 The motion to strike is therefore granted in part, as to paragraphs 5 through 8, and denied in part, as to paragraphs 1 through 4.

16

Two other documents are attached to the affidavit, but are not referenced in the affidavit: a legal memorandum from Amy E. Smith to the Zoning Board dated July 29, 2004; and an "Official Zoning Map, Broadview, IL." There is no basis upon which the court can determine the purpose of these documents absent reference in the affidavit; it therefore disregards them. 17 Hoffman's resume indicates he is a licensed landscape architect with numerous years of experience with municipal and private customers in both planning and landscape architecture. He maintains professional affiliations and speaks on planning and design topics. 18

IV. CROSS-MOTIONS FOR SUMMARY JUDGMENT Both parties have moved for summary judgment on the Village's liability under the First and Fourteenth Amendments. However, the Plaintiffs have moved for partial summary judgment on Counts I and II of their three-count complaint only, choosing not to move for summary judgment on Count III, a claim for monetary damages. A. Summary Judgment Legal Standard Summary judgment is appropriate when the record reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). It is not appropriate if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In seeking a grant of summary judgment, the moving party must identify "those portions of >the pleadings, depositions, answers to the interrogatories, and admissions on file, together with the affidavits, if any,= which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party=s case." Id. at 325. "Summary judgment for a [movant] is appropriate when the [non-movant] `fails to make a showing sufficient to establish the existence of an element essential to its case, and on which it will bear the burden of proof at trial.'" Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 805-06 (1999) (citing Celotex Corp., 477 U.S. at 322). In response, the non-moving party cannot rest on the pleadings, but must designate specific material facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp., 477 U.S. at 324. When considering a motion for summary judgment, the court

19

must view the record and any inferences to be drawn from it in the light most favorable to the opposing party. See Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991). However, a court is "not required to scour the record in search of evidence to defeat the motion; the nonmoving party must identify with reasonable particularity the evidence upon which the party relies." Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 490 (7th Cir. 2007) (citing Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 898 (7th Cir. 2003)). On cross-motions for summary judgment, the traditional standards for summary judgment apply and each movant must individually satisfy Rule 56's requirements. Blum v. Fisher, 961 F. Supp. 1218, 1222 (N.D. Ill. 1997) (citing I.A.E., Inc. v. Shaver, 74 F.3d 768, 774 (7th Cir. 1996)). The court must construe all evidence and inferences therefrom in favor of the non-movant. See Mote v. Aetna Life Ins. Co., 502 F.3d 601, 606 (7th Cir. 2007) (quoting Tegtmeier v. Midwest Operating Eng'rs Pension Trust Fund, 390 F.3d 1040, 1045 (7th Cir. 2004)). The court therefore considers the merits of each motion separately18 and draws all reasonable inferences and resolves all factual uncertainties in favor of the non-moving party.19 B. First Amendment: Zoning Restrictions And Adult Entertainment Establishments

18

In this case, the Plaintiffs "incorporate" arguments made in their opening memoranda into their response in opposition to the Defendants' motion for summary judgment and the Defendants similarly incorporate their response in opposition to the Plaintiffs' motion into their reply in support of their own motion. Similarly, multiple additional statements of material fact offered in opposition are mere duplicates of statements of fact offered in support of the party's own motion. There is, therefore, considerable overlap which makes it almost impossible, as a practical matter, to consider each motion separately. 19 Each party submitted multiple rounds of material facts and exhibits in support of its own motion and in opposition to the other party's motion. The Defendants failed to respond to the Plaintiffs' Rule 56.1(b) Statement of Additional Material Facts and Materials in Opposition to Defendants' Motion for Summary Judgment. Where the statements are duplicates of those in support of Plaintiffs' own motion, the court has implied the same responses as the Defendants offered in their Rule 56.1(b)(3) Response to the Plaintiffs' Statement of Facts, and where the statements are new, the court has exercised its discretion and determined whether the record supports the statement and given weight to the statements accordingly. 20

The Defendants have moved for summary judgment on the basis of an absence of material fact as to the constitutionality of the Zoning Code, arguing that it satisfies an intermediate scrutiny standard as an appropriate time, place, and manner restriction on adult use facilities. The Plaintiffs have cross-moved for summary judgment on the basis of an absence of material fact as to the unconstitutionality of the Zoning Code, arguing that: (1) the special use permit requirement constitutes an impermissible prior restraint on protected speech; (2) the Zoning Code cannot survive strict scrutiny as a content-based restriction on First Amendment freedoms; and (3) the terms employed in the Zoning Code are vague and overly broad and do not satisfy due process requirements. The First Amendment provides, in part, that "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I. It is made applicable to the states through the Fourteenth Amendment's due process clause. Brown v. Brienen, 722 F.2d 360, 366-67 (7th Cir. 1983). Nude dancing and other types of adult entertainment are considered expressive conduct, although they "fall[] only within the outer ambit of the First Amendment's protection." City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000) (plurality opinion) (citations omitted). Many court opinions have established the parameters of the debate over the constitutionality of zoning restrictions on adult businesses. See, e.g., City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 439 (2002) (concluding that an ordinance prohibiting multiple adult businesses within a single building served a substantial government interest); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 54 (1986) (finding constitutional an ordinance that prohibited adult movie theatres within 1,000 feet of any residential zone, single or multifamily dwelling, church, park, or school); Andy's Rest. & Lounge, Inc. v. City of Gary, 466 F.3d 550, 556 (7th Cir. 2006) (holding that restrictions on adult businesses, including limited

21

operating hours and a bar on physical contact between employees and customers, did not render the zoning ordinance unconstitutional). 1. Unconstitutional Prior Restraint: As-Applied Challenge

The Plaintiffs argue that the Village's special use permit procedures constitute an unconstitutional prior restraint on protected speech because the Village has unbounded discretion and no deadline by which it must render a decision. Under the Zoning Code, certain uses in the O/I district "of such a nature that the operation may give rise to unique problems with respect to their impact upon neighboring property or public facilities," such as adult use facilities, animal hospitals, banks, dry-cleaning establishments, and restaurants, require prior authorization by the Village Board of Trustees. See Zoning Code § 10-7-4(A), id. § 10-4-4. At all relevant times, the Zoning Code provided that the Village must hold a public hearing on a special use application and the Village trustees may not authorize a special use permit unless it is: (1) necessary for the public convenience at the location; (2) designed, located and proposed to be operated so that the public health, safety and welfare will be protected; and (3) would not cause substantial injury to property values. See Zoning Code § 10-7-4(C)-(D). It does not appear, from the record before the court, that the Village considered the § 107-4 special use criteria when rendering its decision. The only reason given on the record by the Village for denying zoning permission to Chicago Joe's was § 10-4-6(D)(11)(a)'s prohibition on liquor sales at adult entertainment establishments. See Pls.' Resp. to Defs.' Rule 56.1 Statement of Material Facts ¶¶ 28, 29, 33. The court's review of the sections at issue indicates that a business that does not meet the minimum mandatory guidelines set forth in § 10-4-6 is categorically ineligible for a special use permit, whereas § 10-7-4 provides the guidelines under which businesses that meet the prerequisites of § 10-4-6 may obtain authorization from the

22

Village to conduct their special use. Curiously, although the Village contends that Chicago Joe's did not meet the prerequisites of § 10-4-6(D)(11)(a), it did not deny Chicago Joe's application outright for failure to meet the minimum mandatory guidelines for adult use. Rather, it granted it a special use public hearing pursuant to § 10-7-4(C). At the public hearing on February 28, 2007, the Planning Commission heard testimony from dozens of interested parties about the likely impact of Chicago Joe's on, among other things, property values, safety, the police force, tax revenue, traffic congestion, and general public welfare. See Defs.' Rule 56.1 Statement of Material Facts, Ex. 3C (transcript of public meeting). Members of the Planning Commission and Village Board themselves made public comments relating to the criteria listed. See, e.g., id. 61:14-62:3 (Defendant Ferguson, speaking "as a resident not as a Trustee," discussing his concerns about the impact on youth of a strip club). Yet, neither the Village Planning Commission nor the Board of Trustees placed on the record any findings of fact or other remarks regarding whether Chicago Joe's would otherwise qualify for a special use permit to operate an adult use facility under § 10-7-4(D).20 See Defs.' Rule 56.1 Statement of Material Facts, Ex. 3C at 102:18-103:16 (Planning Commission minutes, motion of Commissioner Keehn moving to "deny the application for special use . . . due to the zoning ordinance set[s] forth the following standards: It shall be unlawful for any adult business to sell, distribute, or permit beer or alcoholic beverages on the premises"); id. Ex. 3D (Planning The Defendants deny this statement, contending that "[t]he Trustees voted to deny for reasons stated on the record" and citing Plaintiffs' Exhibit Q (Village meeting minutes) in support. See Defs.' Rule 56.1(b)(3) Resp. to Pls.' Statement of Facts ¶ 49. However, the exhibit shows that President Vicenik reported only that Chicago Joe's was "a recognized venture in a proper place and location," and that "that type of business is not for the Village of Broadview" and concurred with the Planning Commission "findings of fact" (which consist only of a notation that Chicago Joe's applied for a special use permit for an adult use facility). See Pls.' Statement of Material Facts in Supp. of Mot. for Summ. J. Ex. Q at 3; id. Ex. P. The record does not show that the Village made any findings as to the criteria of § 10-7-4(D). Therefore, based on the record before it, the court finds this to be an undisputed fact. 23
20

Commission report to Mayor Vicenik on the recommended denial of the special use permit); id. Ex. 3E (Board of Trustees meeting minutes). Therefore, despite the fact that a public hearing was held under § 10-7-4 and notwithstanding the Plaintiffs' arguments that denial of a request for special use on the basis of § 10-4-6(D)(11) is improper, the court concludes that the sole basis for the denial was that the "adult use" proposed did not comport with the mandatory requirements of § 10-4-6(D)(11)(a).21 Given that the official record does not implicate § 10-7-4 of the Zoning Code, the court declines to reach the issue of its constitutionality as applied to the Plaintiffs. See Burton v. U.S., 196 U.S. 283, 295 (1905) ("It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case."). The court therefore turns to the whether the section of the Zoning Code that undergirds the proffered reason for the denial of the application, namely § 10-4-6(D)(11)(a), is a proper "time, place, and manner" restriction on protected speech. 2. Time, Place, And Manner Restriction: Section 10-4-6(D)(11)(a)

The Defendants argue that the Zoning Code's operative provisions are proper time, place, and manner restrictions on adult speech because they merely: (1) proscribe specific locations for the adult oriented businesses and (2) prohibit the sale or use of alcohol at such venues. Defs.' Mem. in Supp. of Mot. for Summ. J. at 8. The Plaintiffs argue that the restrictions do not pass constitutional muster because the Village cannot point to any evidence that its predominant

The Defendants' arguments are in accord with this conclusion and dedicate the vast majority of their briefs, in support and in opposition, to the constitutionality of the liquor restriction. See, e.g., Defs.' Mem. in Supp. of Mot. for Summ. J. at 1 ("The permit was denied because the Zoning Code expressly prohibits the explosive combination of nudity and alcohol."); Defs.' Resp. to Pls.' Mot. for Partial Summ. J. at 1 (arguing that Chicago Joe's "sought a zoning permit . . . to be allowed to do precisely what the Village of Broadview's Zoning Code prohibited: providing adult entertainment while serving alcohol"). 24

21

concern was the secondary effects of adult speech rather than the content of the speech. Pls.' Mem. in Supp. of Mot. for Partial Summ. J. at 6. The parties' arguments appropriately focus on the constitutionality of § 10-4-6(D)(11)(a), the ban on alcohol sales at adult establishments, given that it was the proffered reason for the denial of a special use permit to Chicago Joe's. The Seventh Circuit has twice considered zoning ordinances very similar to the one at issue here, namely that restrict the sale of liquor at adult entertainment establishments. See Joelner v. Vill. of Washington Park (Joelner II), 508 F.3d 427 (7th Cir. 2007) (ordinance prohibited sale of alcohol at adult cabarets opened after the date of the ordinance but exempted currently licensed adult cabarets); 22 Ben's Bar, Inc. v. Vill. of Somerset, 316 F.3d 702 (7th Cir. 2003) (ordinance barred the sale, use, or consumption of alcohol on the premises of "Sexually Oriented Businesses"). The Village's Zoning Code provides, in pertinent part, that "[i]t shall be unlawful for any adult business to sell, distribute, or permit beer or alcoholic beverages on the premises." Zoning Code § 10-4-6(D)(11)(a).23 The Seventh Circuit has crafted a two-stage, four-step test to assess the constitutionality of such a restriction. First, [the court] must ask if an ordinance that bans alcohol at adult entertainment establishments (1) is passed pursuant to a legitimate governmental power, (2) does not completely prohibit adult entertainment, and (3) is aimed at combating the negative secondary effects caused by adult entertainment establishments. If so, then the regulation is constitutional if it survives intermediate scrutiny, meaning it serves a substantial governmental interest, it is narrowly tailored, and reasonable alternative avenues of communication remain available. If, on the other hand, a regulation is not aimed at secondary effects (it fails step three), strict Neither party cites Joelner II. The opinion was issued in November 2007 and was amended on denial of rehearing in April 2008. The motions in the case at bar were filed in November 2007, and the matter was fully briefed, including motions to strike, in January 2008. 23 This sub-section of the Zoning Code is identical in both the original and amended versions. Compare Exs. to Defs.' Rule 56.1 Statement of Material Facts, Ex. 3A § 10-2-6 (superseded version), with Exs. to Pls.' Statement of Material Facts in Supp. of Mot. for Partial Summ. J., Ex. I (current version). 25
22

scrutiny applies. This means that the regulation must "be necessary to achieve a compelling state interest and be narrowly drawn to achieve that end." Joelner II, 508 F.3d at 431 (citing Ben's Bar, Inc., 316 F.3d at 722 and Joelner v. Vill. of Washington Park ("Joelner I"), 378 F.3d 613, 622-23 (7th Cir. 2004)). It is beyond question that the Village has the power to regulate alcohol sales and consumption in "inappropriate locations" to protect the health and safety of its residents. Ben's Bar, Inc., 316 F.3d at 722 (citing Pap's A.M., 529 U.S. at 296, 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 515 (1996) and California v. LaRue, 409 U.S. 109, 114 (1972)). Although there is a dispute as to whether there is any actual opportunity for an adult entertainment business to locate in the Village, it is undisputed that the Zoning Code does not, by its terms, completely prohibit adult entertainment. See Pls.' Resp. to Defs.' Rule 56.1 Statement of Material Facts ¶ 14 (not disputing that "[t]he Village of Broadview's Zoning Code permits adult uses in M­ Manufacturing District as a conditional use; and in the O/I­Office and Industrial District as a special use"); id. ¶ 15 (not disputing that 309.2 acres, or 26.8% of the Village is zoned either O/I or M); see Ben's Bar, Inc., 316 F.3d at 723 (noting that the liquor regulation at issue "does not completely prohibit Ben's Bar's dancers from conveying an erotic message; it merely prohibits alcohol from being sold or consumed on the premises of adult entertainment establishments"). Thus, the Village easily passes the first two parts of the first step of the Joelner/Ben's Bar fourstep test. The third step requires a determination of whether the Zoning Code is "aimed at combating the negative secondary effects caused by adult entertainment establishments." Joelner II, 508 F.3d at 431. The Defendants bear the burden of showing that the "`predominant concerns' motivating the ban were with secondary effects." Id. (citing Andy's Rest., 466 F.3d at 554). The burden is not heavy; the municipality "may rely on any evidence that is `reasonably

26

believed to be relevant.'" Alameda Books, Inc., 535 U.S. at 438. Thus, the court may consider a range of materials including "the text of the ordinance, its preamble or express legislative findings associated with it, and studies and information of which legislators were clearly aware." Joelner II, 508 F.3d (citing R.V.S. v. City of Rockford, 361 F.3d 402, 409 n.5 (7th Cir. 2004) and Ben's Bar, Inc., 316 F.3d at 723 n.28); see also Alameda Books, Inc., 535 U.S. at 429 (finding it reasonable for the City of Los Angeles to rely on a study it conducted years before the enactment of the challenged ordinance to show a link between reducing crime and restricting the number of adult establishments in one building). However, "[t]his is not to say that a municipality can get away with shoddy data or reasoning." Alameda Books, Inc., 535 U.S. at 438. The Plaintiffs contend that the Defendants have not met their burden on step three because no evidence has been produced showing that the Village considered the secondary effects of liquor and adult entertainment when enacting its Zoning Code. The Defendants argue that they have met their burden because the Zoning Code states, in relevant part,24 that its purpose is: To promote and protect the public health, safety, morals, comfort and general welfare of the people; To promote the character and the stability of the residential, business and manufacturing areas within the village of Broadview and to promote the orderly and beneficial development of such areas; To prohibit uses, buildings or structures incompatible with the character of development or intended uses within specified zoning districts. The Defendants also claim that the Zoning Code's purpose includes "to protect against . . . hazards in the interest of public health, safety, comfort and general welfare." The ellipses obscure the intent of the provision. The full section reads: "To protect against fire, explosion, noxious fumes and other hazards in the interest of public health, safety, comfort and general welfare." Zoning Code § 10-1-1(M) (emphasis added). The legal maxim noscitur a sociis (a word is known by its associates) makes it extremely unlikely that the drafters foresaw "adult entertainment with liquor" as a potential item on this list, despite the fact that the Seventh Circuit called the mix "explosive" in Ben's Bar, Inc. Therefore, the court will consider only three of the four proffered purposes. 27
24

Zoning Code § 10-1-2(A), (C), (H).25 It is not disputed that this language appears in the Zoning Code. See Defs.' Rule 56.1(b)(3) Resp. to Pls.' Statement of Material Facts ¶ 69 (admitting that Ex. W represents the language of the Zoning Code); Pls.' Statement of Material Facts in Supp. of Mot. for Partial Summ. J., Ex. W (Zoning Code § 10-1-2). The Defendants additionally ask the court to "take judicial notice that nudity and alcohol are an explosive combination." Defs.' Mem. in Supp. of Mot. for Summ. J. at 16 n.3. They reason that multiple courts around the nation have so stated, and the "fact," therefore, is not subject to reasonable dispute. See id. at 13-16 (collecting cases, including Ben's Bar, Inc., 316 F.3d at 708 and City of Chicago v. Pooh Bar Enters., Inc., 865 N.E.2d 133, 157 (Ill. 2006)). The Defendants emphasize that a municipality may reasonably rely on the findings of courts in support of its zoning restrictions, and that the Village had a sound basis for believing there was a correlation of adult-oriented businesses that serve alcohol and harmful secondary effects, such as increased crime. The link, they argue, is obvious and is deducible from common sense. Defs.' Resp. to Pls.' Mot. for Partial Summ. J. at 10 (citing to N.Y. State Liquor Auth. v. Bellanca, 452 U.S. 714, 718 (1981) and Pooh Bar Enters., Inc., 865 N.E.2d at 157). Moreover, they argue that, because the court is required to undertake a highly deferential review of the Village's purposes and the Plaintiffs have not proved the objectives of the zoning ordinance to be pretextual, the Zoning Code passes constitutional muster. The Zoning Code contains no express legislative findings on the negative secondary effects caused by adult entertainment establishments. Section 10-1-2 is silent on the issue, stating only generalized purposes to protect the health and welfare of Village residents and

The original and amended versions of the Zoning Code are identical. Compare Exs. to Defs.' Rule 56.1 Statement of Material Facts, Ex. 3A §10-1-1 (superseded version), with Exs. to Pls.' Statement of Material Facts in Supp. of Mot. for Partial Summ. J., Ex. W (current version). 28

25

promote proper development. The Defendants submitted, along with other evidence, affidavits from: Mayor Vicenik; Village Zoning and Planning Commission Chairman Donato; and the Village Zoning Administrator, Michael Kaminski. None discuss the purposes of the adult-use restrictions in § 10-4-6(D)(11) of the Zoning Code. None state their awareness of relevant First Amendment case law or studies of deleterious effects of allowing adult entertainment establishments to serve alcohol. The sole invocation of these rationales comes in a summary judgment brief lodged with the court by the Defendants' counsel. This is in stark contrast to the two cases upon which the Defendants primarily rely for the proposition that the pervasiveness of secondary effects of adult businesses is "common sense." In Bens Bar, Inc., the zoning ordinance at issue was enacted for the explicit purpose of regulating "Sexually Oriented Businesses and related activities to promote the health, safety, and general welfare of the citizens of the Village of Somerset, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of Sexually Oriented Businesses within the Village of Somerset." 316 F.3d at 704-05. The ordinance contained a legislative findings section that read: Based on evidence concerning the adverse secondary effects of Sexually Oriented Businesses on the community in reports made available to the Village Board, and on the holdings and findings in [numerous Supreme Court, federal appellate, and state appellate judicial decisions], as well as studies and summaries of studies conducted in other cities . . . and findings reported in the Regulation of Adult Entertainment Establishments in St. Croix County, Wisconsin; and the Report of the Attorney General's Working Group of Sexually Oriented Businesses . . . the Village Board finds that: (a) Crime statistics show that all types of crimes, especially sex-related crimes, occur with more frequency in neighborhoods where sexually oriented businesses are located. (b) Studies of the relationship between sexually oriented businesses and neighborhood property values have found a negative impact on both residential and commercial property values.

29

(c) Sexually oriented businesses may contribute to an increased public health risk through the spread of sexually transmitted diseases. (d) There is an increase in the potential for infiltration by organized crime for the purpose of unlawful conduct. (e) The consumption of alcoholic beverages on the premises of a Sexually Oriented Business exacerbates the deleterious secondary effects of such businesses on the community. Id. at 705 (ellipses, substitutions, and emphasis in original). In reaching its conclusion that the ordinance comported with First Amendment requirements, the Seventh Circuit referred to the clear purpose and explicit findings of the village board. See id. at 723 (including as key factors the village's finding that liquor exacerbates secondary effects of adult entertainment and its express pronouncement that the purpose was not to deny access to protected activities). The second case relied on by the Defendants for the proposition that secondary effects are obvious is Pooh Bah Enterprises, Inc. In Pooh Bah, the Illinois Supreme Court, employing the Ben's Bar test, upheld an ordinance that prohibited nude dancing in liquor establishments under the intermediate scrutiny standard. 865 N.E.2d at 161. In doing so, it conducted an extensive analysis of the evidence offered to support the contention that the challenged ordinance was aimed at combating the negative secondary effects caused by adult entertainment establishments. Id. at 154-56. The ordinance contained explicit findings on the secondary effects. See id. at 154 (quoting the preamble to the ordinance which discussed the link of adult uses in certain area and increased criminal activity). Testimony indicated that the city zoning department had consulted with groups such as the American Planning Association, had reviewed numerous studies from other cities and had presented its recommendations to the city council for consideration during the enactment of the ordinance. Id. at 155. Studies on the impact of liquor sales on the secondary effects were among the studies reviewed. Id. at 158. Only when the court had established that the city did, in fact, make findings as to the "deleterious secondary effects of 30

allowing adult entertainment establishments to serve liquor" did it grant these findings "a high degree of deference." Id. at 159 (noting that a legislative body could not rely on shoddy data, but the court would "not specify the methodological standards to which [the city's] evidence must conform"). Other cases similarly find ordinances subject to intermediate scrutiny only where evidence indicates that the ordinances were enacted after consideration of secondary effects. See, e.g., Alameda Books, Inc., 535 U.S. at 430 (finding sufficient a city's primary reliance on a study that demonstrated a link between combination adult businesses and harmful secondary ef