Zoning ordinance to limit art galleries in Carmel

Bob Sheridan bobsheridan at earthlink.net
Tue Oct 26 11:14:44 PDT 2004

I suppose all zoning is concerned with activity content to some extent:  
no poultry-keeping or slaughterhouses in cities, for example, no 
drug-rehab facilities in neighborhoods, etc.

What makes the question challenging is that with art galleries the 
ordinance, like it or not, regulates the expression of ideas, 
intellectual content, not barnyard smells. 

Invalid per se, perhaps.

Enter the Chilling-effect argument.  With intellectual content, it's 
harder to tell when the ordinance is valid because too many art 
galleries stink, or invalid because the political message of the artist 

 From a national point of view, can the court allow a regime of local 
ordinances that potentially burden the first amendment and which might 
be awfully subject to abuse on political content grounds in other, less 
tolerant burgs than I suspect Carmel is?

Or mustn't it rule that ordinances singling out FA protected 
expressional activity require greater protection from chilling-effect, 
leaving it up to head-scratchers like us to figure out the extent of the 
margin and how to comply?

Incidentally, in San Francisco we had an unfortunate incident recently.  
A little store-front art gallery in a commercial-residential district 
displayed oil paintings showing U.S prisoner abuses at Abu Ghraib, 
Iraq.  An anonymous  neighbor objected on political grounds and first 
threatened, then defaced the store, and then assaulted and beat the 
owner, a woman who brought her young children to the gallery.  
Intimidated, she closed the gallery.

Blawging at: :  *http://tinyurl.com/4ekj3*

Volokh, Eugene wrote:

>That may well be right -- the analogy is certainly tempting, and the ordinance might be constitutional.
>And yet the erogenous zoning argument has always been that the theaters increase crime or decrease neighboring property values.  No such charge of pretty direct harm to neighbors is being made about the art galleries.  Rather, the claim is that they're "creating monotony," interfering with the community's "diversity and vitality," and reducing the space available for "other, more diverse and interesting uses" -- quite possibly harms of the sort that zoning law might normally aim at, but not in the same league, I think, as increased crime or even declining neighboring property values.  Should the magnitude and nature of the purported harm matter?  Or is it enough that the city has some credible land-use purpose, and the ordinance seems justified without reference to the content of the speech (probably)?
>Finally, is there a vagueness problem with "art gallery"?  I think there probably wouldn't be, especially if functional works (clocks, dishware, etc.) are excluded (as to those, the term might indeed be vague).  Do others agree?
>-----Original Message----- 
>From: Mark Rahdert [mailto:mark.rahdert at temple.edu] 
>Sent: Tue 10/26/2004 1:11 PM 
>To: Volokh, Eugene; conlawprof at lists.ucla.edu 
>Subject: Re: Zoning ordinance to limit art galleries in Carmel
>	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
>	>
>	>
>	>
>	>
>	>
>	>__________________________________________________________________
>	>
>	>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.
>	>
>	>this 23rd day of September by the following roll call vote:
>	>
>	>
>	>
>	>
>	>AYES:   COUNCIL MEMBERS:        Bethel, Cunningham, Hazdovac,
>	>                                                 McCloud
>	>
>	>
>	>
>	>
>	>___________________________
>	>
>	>
>	>
>	>________________________
>	>Karen Crouch, City Clerk
>	>
>	>_______________________________________________
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