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County of Benton v. Kismet Investors

November 19, 2002

COUNTY OF BENTON, RESPONDENT,
v.
KISMET INVESTORS, INC., APPELLANT.



Benton County District Court File No. CX99557

Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Halbrooks, Judge.

SYLLABUS BY THE COURT

1. Appellant's nude-dancing establishment qualifies as an "adult use" under Benton County, Minn., Development Code § 7.10.1 (1998).

2. Appellant's business qualifies as an "adults-only" business under Minn. Stat. § 394.21, subd. 1a (2000), and the exemption in Minn. Stat. § 394.21, subd. 1a, which does not prohibit amortization of adults-only businesses, is valid under the First Amendment.

The opinion of the court was delivered by: Kalitowksi, Judge

Affirmed

OPINION

Appellant Kismet Investors, Inc. challenges the district court's grant of summary judgment to respondent Benton County. The district court determined that appellant's nude-dancing establishment, King's on the Lake, is an "adult use" within the meaning of the Benton County Development Code. The district court also concluded that Minn. Stat. § 394.21, subd. 1a, does not violate the First Amendment and that King's on the Lake qualifies as a "similar adults-only" business under the statute.

FACTS

King's on the Lake, also called King's Inn (King's), is a nude-dancing establishment located in Benton County. In 1994, the Benton County Board of Commissioners passed Ordinance 242, which regulates adult uses. Ordinance 242 allows adult uses in areas zoned B-1, B-2, I-1, and I-2 so long as no adult use is located within 500 feet of any area zoned R-1, R-2, or R-3, or within 500 feet of any school, church, daycare facility, hotel, or public park. Benton County, Minn., Development Code §á7.10.2(A) (1998). The ordinance defines adult uses to include adult enterprises, businesses or places open to some or all members of the public at or in which there is an emphasis on the presentation, display, depiction or description of 'specified sexual activities' or 'specified anatomical areas.' Id. § 7.10.1.

The ordinance designates existing adult uses as nonconforming uses until July 31, 1998, and unlawful uses after that date. Id. § 7.10.3. King's is located approximately 150 feet from the nearest residence, and that residence is located on property zoned R-2.

On July 22, 1998, Kismet Investors, Inc. (Kismet) sought a variance to continue operating King's at its current location. The Benton County Board of Adjustment denied the variance on October 15, 1998. Kismet appealed to the district court. The district court entered summary judgment affirming the variance denial on April 2, 1999. Kismet further appealed the variance denial to this court. This court affirmed. See Kismet Investors, Inc. v. County of Benton, 617 N.W.2d 85 (Minn. App. 2000), review denied (Minn. Nov. 15, 2000), cert. denied, 122 S. Ct. 2356 (U.S. June 10, 2002).

After the district court affirmed the variance denial, Benton County commenced the present action seeking a permanent injunction against appellant's operation of King's at its current location. The district court granted respondent's motion for summary judgment on August 1, 2000. The district court issued a permanent injunction against appellant's operation of King's at its current location and initially stayed the injunction pending resolution of appeals. The district court later vacated that stay.

On August 14, 2000, appellant filed a motion for amended findings. The district court issued amended findings on November 27, 2000. The district court amended some of its initial findings and vacated its earlier judgment. But the district court again granted summary judgment for respondent, permanently enjoining the operation of King's at its current location and further staying the order pending appeals.

ISSUES

1. Did the district court err by finding that appellant's business is an "adult use" under the Benton County Development Code?

2. Does the exemption from Minn. Stat. ยง 394.21, subd. 1a, which allows amortization of adults-only businesses, violate the First Amendment and does King's qualify as a "similar ...


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