Zoning ordinance to limit art galleries in Carmel

[Mark Rahdert]

I suppose that, if a community can use zoning to reduce the concentration 
of adult bookstores, it should be able to use zoning to reduce the 
concentration of art galleries, on some version of a "secondary effects" 
rationale.

Mark Rahdert
Temple

At 05:45 PM 10/25/04 -0700, Volokh, Eugene wrote:
>         Any thoughts on whether the ordinance below, which tries to
>limit art galleries in Carmel, is constitutional?
>
>         Eugene
>
>
>
>CITY OF CARMEL-BY-THE-SEA
>CITY COUNCIL
>
>URGENCY ORDINANCE NO. 2004-05
>
>  AN URGENCY ORDINANCE ESTABLISHING LIMITATIONS ON ART GALLERIES
>__________________________________________________________________
>
>WHEREAS, Carmel-by-the-Sea has always had a rich tradition as a place of
>culture and the arts; and
>
>WHEREAS, the City has a vital commercial area that supplies goods,
>services and recreation to residents, businesses and visitors
>
>WHEREAS, it is important for the health and welfare of the community to
>maintain an appropriate balance of land uses within the commercial areas
>so that the needs of residents, businesses and visitors are met; and
>
>         WHEREAS, there are now over one-hundred art galleries in
>Carmel-they now make up a disproportionate number of the businesses
>within the community and are displacing other varieties of business to
>the detriment of the long-term health of the City; and
>
>WHEREAS, with a resident population of just 4,025 it is clear that
>nearly all of the galleries in Carmel are supplying goods for visitors
>and this results in less space available for businesses that might
>supply goods and services to residents; and
>
>WHEREAS, even visitors to Carmel want to see more than just art
>galleries-to the extent that galleries occupy available retail
>commercial space this reduces space that might be occupied by other,
>more diverse and interesting uses for the City's visitors; and
>
>WHEREAS, this issue was addressed in the drafting of the City's General
>Plan/Local Coastal Land Use Plan through adoption of policies on
>maintaining a balanced mix of uses and policies specifically identifying
>Art Galleries as one of the uses that should be limited; and
>
>WHEREAS, Objective O1-5 of the General Plan calls for the City to
>"Protect and enhance the balanced mix of uses in the central business
>area, particularly along Ocean Avenue to ensure a high quality,
>pedestrian oriented commercial environment providing a wide variety of
>goods and services to local residents"; and
>
>         WHEREAS, Policy P1-21 of the General Plan directs that the City
>"Control and reduce where possible the number of business uses that are
>found to be out of proportion with a balanced mix of uses necessary to
>protect the residential character and economic objectives of the
>community"; and
>
>WHEREAS, Policy P1-22 requires the City to "establish methods that will
>result in limiting or reducing the number of certain uses including but
>not limited to drinking places, art galleries, gift shops, T-shirt
>shops, and jewelry stores in the Central Commercial Land use district";
>and
>
>NOW, THEREFORE, the City Council of the City of Carmel-by-the-Sea does
>hereby ordain as follows:
>
>Section One.  Urgency Provision.  This ordinance is declared to be an
>urgency ordinance as authorized by Section 65858 of the California
>Government Code.  The basis of the urgency is as set forth in the
>statements above.  There is a real and impending threat of new art
>galleries being opened during the interval between first reading of the
>long-term Ordinance and that Ordinance's effective date.  Each new
>gallery that is opened during this period will displace a business that
>might otherwise supply different goods and services to the community at
>large.  The cumulative effect of such displacements would be to further
>imbalance the economic health of the City and reduce the diversity and
>variety of commercial businesses that are so valued by both residents
>and visitors.  When such a vast number of retail businesses in the
>community are of just a single land use type, this creates monotony and
>robs the community of its diversity and vitality.  This would undermine
>the intent of the General Plan/Coastal Land Use Plan and decrease the
>value of Carmel's commercial area.
>
>This is clearly within the scope of the public welfare.  As stated by
>the U.S. Supreme Court in Berman v. Parker, 348 U.S. 26 (1954):
>
>         "The concept of the public welfare is broad and inclusive.  The
>values it represents are spiritual as well as physical, aesthetic as
>well as monetary.  It is within the power of the legislature to
>determine that the community should be beautiful as well as healthy,
>spacious as well as clean, well-balanced as well as carefully
>patrolled."
>
>
>Section Two.  Art Gallery Standards Adopted.
>
>The following standards are hereby adopted.  No business license or use
>permit shall be issued for an art gallery unless it complies with the
>following standards:
>
>1.      Art galleries shall be allowed in the Central Commercial
>District only.
>
>2.      Art galleries shall comply with one of the following two
>standards:
>
>A.      Single-Artist Gallery:  The use features a single artist
>representing at least 80% of the art for sale within the use; or
>B.      The use includes a working studio that is utilized for art
>production by artists represented in the gallery for over half (50%) of
>the hours the use is open for business.
>
>Section Three.  Nonconformity Provisions.
>
>Any existing art gallery that does not comply with the provisions of
>this ordinance shall be considered nonconforming.  Any nonconforming art
>gallery that goes out of business or changes ownership shall be replaced
>only by uses conforming to the zoning district standards applicable to
>the location of the use, including the standards of this ordinance.
>
>Section Four. Severability
>
>If any part of this ordinance, even as small as a word or phrase, is
>found to be unenforceable such finding shall not affect the
>enforceability of any other part.
>
>Section Five.  Effective Date
>
>This Ordinance shall become effective immediately upon adoption by a
>four-fifths vote of the City Council.  This Ordinance shall expire after
>45 days, by operation of law, unless readopted following a public
>hearing prior to its expiration.
>
>PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA
>this 23rd day of September by the following roll call vote:
>
>
>
>
>AYES:   COUNCIL MEMBERS:        Bethel, Cunningham, Hazdovac,
>                                                 McCloud
>
>NOES:   COUNCIL MEMBERS:   Rose
>
>ABSENT: COUNCIL MEMBERS:   None
>
>SIGNED:
>
>___________________________
>SUE McCLOUD, MAYOR
>
>ATTEST:
>
>
>________________________
>Karen Crouch, City Clerk
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as 
>private.  Anyone can subscribe to the list and read messages that are 
>posted; people can read the Web archives; and list members can (rightly or 
>wrongly) forward the messages to others.