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Life May Be a Cabaret but NIMBY
by Ron Davis

Opponents of an adult cabaret located at a Minnesota shopping center have shut down the operation despite claims by the cabaret's owner that their action not only caused him great hardship but also was unconstitutional.

The shopping center, located in the St.Cloud area, had housed the cabaret for several years. But the county commission recently passed a law banning "adult-use establishments" that are located within 500 feet of residentially zoned areas or schools, churches, daycare facilities, hotels or public parks.

The shopping center location of the cabaret violated that law, so the cabaret's owner asked local planning officials to grant him a variance. At a subsequent hearing, he claimed that he had made $300,000 worth of improvements to the property and that the surrounding community had suffered no adverse effects from the cabaret's existence. He also pointed out that the cabaret's operation had not resulted in increased police calls or lowered the property values of neighbors.

Finally, he argued that by denying him the use of his property, the county commission had violated his constitutional rights. Specifically, he added, the zoning law was an illegal exercise of police powers by the government.

In response, local government officials observed that the cabaret's owner had not demonstrated a hardship "unique to his property" and that the variance, if granted, would alter the family-neighborhood character of the area. The officials also noted that 100 alternative sites were available in the county for possible adult establishments.

A Minnesota appellate court, in upholding the actions of county officials, explained, "The cabaret's owner argues that improvements he made to the property make it useful only as an adult cabaret. An owner's significant investment in property, however, does not demonstrate the absence of other reasonable uses. Because he has demonstrated neither that his property can be put to no other reasonable use nor that his plight is unique, he has not met his burden to show particular hardship."

The court also dismissed the charge that the zoning law violated his constitutional rights. Explained the judges, "One hundred sites were available for adult uses in the county.... The Constitution does not guarantee the cabaret's owner a certain size piece of land or building for his adult use." (Kismet Investors, Inc. v. County of Benton, 617 N.W.2d 85 [Minn.App. 2000])

Decision: December 2000
Published: February 2001



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