The end of snooty zoning rules? - East Valley Tribune: Arizona

The end of snooty zoning rules?

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Mark J. Scarp is a contributing columnist for the Tribune. Reach him at mscarp1@cox.net.

Posted: Sunday, November 6, 2011 5:12 pm | Updated: 5:34 pm, Fri Nov 11, 2011.

Snooty? Not Mesa. Well, hardly ever, anyway.

Snooty communities’ residents are often seen insisting that their local governments enforce zoning laws as weapons against People Who Don’t Do As We Do or Say What We Say. And snooty city councils, composed of people who cater to snooty people as an assurance of their re-election, often go along.

And when they complain, they often turn to euphemisms such as “incompatible use” when they really mean “a place I’m afraid of (or disagree with).” Some even point to these places as serious threats to property values, even when no property values could have suffered anywhere near as much from a tattoo shop down the street as from dozens of bad loans to buyers of nearby parcels that should never have been made.

I’m talking about Scottsdale, right? Not today.

In one zoning case, six Mesa City Council members chose the easy path to support snootiness rather than make the tougher choice to uphold the Constitution.

On Wednesday the Arizona Court of Appeals, in a unanimous decision, found in favor of Angel Tattoo, which sought to open in Dobson Ranch after the Mesa City Council rejected that location in 2009.

It was a slam-dunk decision, as the court found for shop owners Ryan and Laetitia Coleman on all three of their constitutional causes of action: their rights of free speech, of equal protection under law and of due process.

The court’s ruling doesn’t mean to say that cities can’t properly apply what are known as “time, place and manner” restrictions on speech. It’s that courts can’t dismiss complaints from people like the Colemans without facts justifying such restrictions.

According to the decision, the Mesa zoning board had voted 3-2 to recommend the Council deny their application for a use permit as not “appropriate” for the neighborhood.

About a month later, the Council agreed. Members voted 6-1 to deny their application (only Mayor Scott Smith voted in favor) after hearing from opponents, who, according to the ruling, “presented no evidence but articulated concerns that a tattoo parlor in the suggested location might draw crime to the area and reduce property values.”

Of course, the thing about tattoo places is that these complaints are about 20 years too late. For whatever reason, tattoos have gone mainstream, just as backwards baseball caps, once the exclusive province of those who play catcher, today top the heads of millions of young men.

But because enough people don’t get out much and thus have a greater-than-even chance of fearing the unknown, again, as the court pointed out, without evidence, old fears move into the present. And so there will always be sympathetic politicians eager to be Defenders of the Neighborhood.

I don’t have a tattoo, don’t plan on getting one, and think that, depending on their location and design, they can hinder someone’s chances in a job interview far more than they are worth as personal adornment. But my view on tattoos stops at the other person’s epidermis.

And, as the state Court of Appeals — and a federal appellate court last year — affirmed, tattoos are forms of expression protected by the First Amendment to the Constitution. And part of that protection means that telling tattoo shops they can’t open is tantamount to telling a publication it can’t publish. Or can hand out copies only in the middle of the unoccupied desert, away from decent people.

Mesa didn’t ban tattoo shops entirely, as Hermosa Beach, Calif., did, only to have the 9th U.S. Circuit Court of Appeals strike that ban down in 2010 as an abridgement of the right of free speech. It has approved other tattoo businesses.

In fact, the court also found that the city zoning board staff, “in recommending issuance of the permit, found that the proposed tattoo parlor conformed with Mesa’s general plan and policies, would be compatible with and not detrimental to the neighborhood, and would not damage property values.

“Staff additionally related that the police department had reported no increase in crimes attributable to a similarly situated tattoo parlor.”

As the Tribune’s coverage of the Mesa decision stated, Council members at that 2009 meeting were concerned about an aggregation of uses they questioned, that is, whether there is such a thing as “too many” tattoo shops, or too much of one tattoo shop, one massage business and one payday loan store.

But the Arizona Court of Appeals ruling is a warning to city officials about too much reliance on the aggregation theory. As the court wrote: “(I)f Mesa is able to deny a permit application based solely on negative perceptions about tattoo parlors, or Mesa’s discretion in determining neighborhood compatibility is unguided, the Colemans cannot practically determine where to properly locate within Mesa.”

And if you are given no clue as to where you can legally speak, then you’re not speaking. That isn’t freedom.

• Read Tribune contributing columnist Mark J. Scarp’s (mscarp1@cox.net) opinions here on Sundays. Watch his video commentaries on evtnow.com/scarp

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