MEMORANDUM OPINION AND ORDER

DONOVAN FRANK, District Judge

Introduction

The above-entitled matter is before the undersigned United States District Judge pursuant to Defendant High Forest Township's Motion for Summary Judgment. Plaintiff filed this action seeking declaratory judgment as to the constitutionality of certain zoning ordinances promulgated by Defendant High Forest Township and further seeking to enjoin application of these zoning ordinances against the Plaintiff. For the reasons set forth below, Defendant's motion is denied.

Background

This case raises the issue of the constitutional validity of High Forest Township's adult entertainment zoning ordinance that creates a 1000-foot setback or perimeter restriction for adult bookstores from other specified uses.

1 Apparently, the dispute focuses on a 25-foot portion of the building that falls within the 1000-foot perimeter requirement.

Plaintiff DiMa Corporation operates "Pure Pleasure," a business establishment selling adult movies, magazines, and books, in a building located at 2727 Highway 63 SW in High Forest Township, Minnesota. The store has no facilities for viewing these sexually explicit materials on the premises-the materials it sells are purely for "take-home" consumption. High Forest Township's permanent zoning regulations permit adult entertainment uses in districts zoned as "highway commercial" ("HC") so long as the facilities employed in such uses are at least 1000 feet from existing residential zoning districts, areas designated for future residential development on any Urban Service Area Land Use Plan, any church, any school, any youth facility, or any other adult establishment. The building in which DiMa is operating its adult business is in a district zoned HC. It is at least 1000 feet from any existing residential zoning district, church, school, youth facility, or other adult establishment. However, a portion of the building at issue1 is within a 1000-foot perimeter of an area designated for future residential development on a land use plan developed by the nearby City of Stewartville. If the Stewartville plan is ever put into use, the building being leased by DiMa will be within 1000 feet of property currently in High Forest Township, but planned to be annexed by Stewartville.

DiMa brought its claims challenging the constitutionality of the ordinance on First Amendment grounds. In its Motion for Summary Judgment, High Forest Township asserts that its ordinance is a valid, content-neutral time, place, and manner restriction.

Discussion

1. Standard of Review

Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must view the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank of Missouri, 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated, "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1).

The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enter. Bank, 92 F.3d at 747. The nonmoving party must demonstrate the existence of specific facts in the record which create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik, 47 F.3d at 957.

2. The Constitutionality of the Perimeter Restriction

High Forest Township has asserted that the zoning ordinance and perimeter restriction is a valid, content-neutral time, place, and manner restriction. A time, place, and manner restriction is constitutional if it (1) is content-neutral; (2) is designed to serve a substantial government interest; and (3) does not unreasonably limit the alternative avenues of expression. City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 47 (1986).

First, there appears to be no question that High Forest Township's ordinance is content-neutral. "A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). An ordinance may regulate only businesses selling sexually explicit merchandise and still remain content-neutral if "its purpose is to lessen undesirable secondary effects attributable to those businesses, such as increased crime, lower property values, or deteriorating residential neighborhoods." ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413, 1416 (8th Cir. 1994) ("ILQ"). Here, the purpose of the ordinance was to lessen such secondary effects, and specifically to prevent "a 'skid row' or blighting development pattern in adjacent areas" to such adult uses. See High Forest Township Zoning Ordinance, preamble to Section 8.04.

The central issue of dispute, however, is whether the ordinance meets the second prong of Renton; namely, whether it serves a substantial governmental interest. "Regulations reasonably designed to curb unwanted secondary effects of sexually oriented businesses serve a substantial governmental interest." ILQ, 25 F.3d at 1416 (citing City of Renton, 475 U.S. at 50).

However, "[i]n identifying and measuring such secondary effects, a city may rely upon studies or evidence generated by other cities 'so long as [that] evidence . . . is reasonably believed to be relevant to the problem that the city addresses.'" Id. (citing City of Renton, 475 U.S. at 51-52). DiMa asserts that the Township has failed to present evidence upon which it could reasonably rely to demonstrate a link between purely take-home adult entertainment stores and negative secondary effects. First, DiMa contends that High Forest Township relied upon "shoddy data or reasoning" in relying upon studies that are so "fundamentally flawed from a scientific and methodological standpoint" that the Township should not have relied upon them.

See Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment at 13. Second, DiMa points to studies it has submitted that conclude that no relationship exists between adult entertainment and adverse secondary effects. Finally, DiMa asserts that none of the evidence relied upon by High Forest Township is related to purely take-home adult entertainment. Based on these factors, DiMa asserts that the studies supporting the Township's rationale do not survive the scrutiny set out in the recent United States Supreme Court decision in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) ("Alameda Books"). Thus, DiMa contends that High Forest Township has not demonstrated that the ordinance is designed to serve a substantial government interest.

High Forest Township, on the other hand, relies heavily upon the Eighth Circuit's opinion in ILQ to support its position that the Township reasonably relied upon studies of secondary effects to justify its ordinance. 25 F.3d 1413. In enacting its ordinance, High Forest Township relied upon studies and reports on the secondary effects of adult entertainment that were used by the Olmsted County Board of Commissioners when that county enacted a similar ordinance. Olmsted County, rather than conducting its own studies, relied upon studies conducted elsewhere, specifically: a 1983 study conducted in Indianapolis, Indiana; a 1978 study conducted in St. Paul, Minnesota; a 1987 study conducted in St. Paul, Minnesota; and a 1979 study conducted in Phoenix, Arizona. In addition, Olmsted County relied upon an undated report by the American Society of Planning Officials. These studies considered the adverse secondary effects that adult entertainment business had on crime rates and property values where the studies were located. These studies did not specifically address the secondary effects of adult businesses that allowed purely take-home consumption of adult materials. In addition, these studies were conducted in metropolitan, not rural, areas.

DiMa has submitted its own reports that call into question many of the findings of the reports relied upon by High Forest Township in enacting its ordinance. DiMa primarily relies upon an article prepared by Paul, Linz Shafer entitled "Government Regulation of 'Adult' Businesses through Zoning and Anti-Nudity Ordinances: Debunking the Legal Myth of Secondary Effects," 6 Comm. L. Pol'y 355 (2001). This article specifically questions the scientific methodology and empirical research conducted in all of the studies relied upon by Olmsted County, and thus relied upon by High Forest Township, with the exception of the study conducted by the American Society of Planning Officials. Ultimately, the Linz, Paul Shafer article reaches the conclusion that the secondary effects cited in the studies relied upon by High Forest Township are not related to adult entertainment facilities. In addition, DiMa has submitted an expert report by R. Bruce McLaughlin, a land use planning consultant, stating that the studies relied upon by High Forest Township do not address adult establishments that provide purely take-home materials. Mr. McLaughlin cites three recent studies that address adult establishments that provide purely take-home materials. Mr. McLaughlin asserts that these studies reach the conclusion that there is no correlation between these types of establishments and adverse secondary effects in surrounding neighborhoods.

High Forest Township argues that under ILQ, so long as the Township was reasonable in its belief that an adult use would produce unwanted secondary effects, the ordinance serves a substantial governmental interest and meets the second prong of Renton. In ILQ, the Eighth Circuit reviewed a challenge regarding the constitutionality of a zoning ordinance, similar to that at issue here, that restricted the location of adult establishments. 25 F.3d at 1415. The facility challenging the ordinance was an adult book and video store that sold materials for purely take-home use, much like DiMa's "Pure Pleasure" bookstore. Id. The District Court had granted a preliminary injunction enjoining enforcement of the ordinance, holding that the City of Rochester was unreasonable in relying upon other cities' studies to justify the ordinance. See ILQ Invs., Inc. v. City of Rochester, 816 F. Supp. 516 (D.Minn. 1993). Specifically, the District Court held that Rochester's reliance was misplaced when these studies were not related to adult establishments that offered sexually explicit materials for only off-premises consumption. The Eighth Circuit overturned the District Court, holding that "[i]n identifying and measuring such secondary effects, a city may rely upon studies or evidence generated by other cities 'so long as [that] evidence . . . is reasonably believed to be relevant to the problem that the city addresses.'" ILQ, 25 F.3d at 1416 (quoting City of Renton, 475 U.S. at 51-52). Further, the Eighth Circuit held that the City's ordinance had been justified by the City's reliance upon "studies of the secondary effects of reasonably similar businesses." Id. at 1418 (emphasis supplied).

In a more recent case challenging the constitutionality of zoning ordinances that limit adult establishments, a four-justice plurality of the United States Supreme Court upheld the City of Los Angeles's zoning ordinance that prohibited operation of multiple adult establishments in a single building. Alameda Books, 535 U.S. 425. The Court held that the City could reasonably rely upon a 1977 Los Angeles Police Department study to support its position that a high concentration of adult operations within a single adult establishment was correlated with high crime rates. Id. at 436. The Court held that "the city certainly bears the burden of providing evidence that supports a link between concentrations of adult operations and asserted secondary effects. . . ." Id. at 437. In revisiting the principles laid out in Renton, the Court reiterated that "a municipality may rely on any evidence that is 'reasonably believed to be relevant' for demonstrating a connection between speech and a substantial, independent government interest." Id. at 438. However, the Court specifically noted:

This is not to say that a municipality can get away with shoddy data or reasoning.

The municipality's evidence must fairly support the municipality's rationale for its ordinance. If plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the municipality's evidence does not support its rationale or by furnishing evidence that disputes the municipality's factual findings, the municipality meets the standard set forth in Renton. If plaintiffs succeed in casting doubt on a municipality's rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance.

DiMa suggests that Alameda Books overrules the Eighth Circuit's decision in ILQ, as it places a more significant burden on the municipality to support the rationale for enacting its ordinance than the Eighth Circuit set out in ILQ. Specifically, DiMa asserts that under ILQ, the Court merely looks to whether a municipality's reliance upon various studies was reasonable. If any fact question remains as to the reasonableness of a municipality's reliance, the ordinance is valid. ILQ, 25 F.3d at 1418. However, DiMa points out that Alameda Books prescribes a much stricter burden-shifting scheme. Under Alameda Books, if a plaintiff casts doubt on the municipality's rationale for its ordinance, the burden shifts back to the municipality to justify its rationale. Alameda Books, 535 U.S. at 438-39.

Whether or not Alameda Books rises to the level of overruling ILQ, Alameda Books certainly clarifies the manner in which the Court should determine whether the municipality relied on evidence that was "'reasonably believed to be relevant' for demonstrating a connection between speech and a substantial, independent governmental interest." Alameda Books, 535 U.S. at 438. Here, under the standard set forth in Alameda Books, the Court finds that genuine issues of fact exist as to whether High Forest Township was reasonable in relying upon the studies that provided the rationale for its ordinance. Primarily, the Court finds persuasive that the studies relied upon by High Forest Township were conducted in metropolitan, not rural, areas, and the studies did not particularly examine the secondary effects of purely take-home fare. In addition, some of the studies were more than 25 years old. While these factors alone may not be enough to overcome the mere rationality test of ILQ, the conflicting studies presented by DiMa have certainly cast doubt on whether the studies relied upon by High Forest Township are applicable or valid. Under Alameda Books, this is sufficient to shift the burden back to High Forest Township to further justify its rationale. However, because High Forest Township has not supplemented the record with additional evidence supporting its theory, genuine issues of fact remain as to the validity and applicability of the studies relied upon by High Forest Township. Because the Court finds that DiMa has raised genuine issues of fact as to the validity and applicability of the studies relied upon by High Forest Township to enact its ordinance, the Court need not address the third element of Renton, whether the Township's zoning ordinance "unreasonably limits alternative avenues of communication." City of Renton, 475 U.S. at 47. Defendant High Forest Township's Motion for Summary Judgment is denied.

For the reasons stated, IT IS HEREBY ORDERED:

1. Defendant's Motion for Summary Judgment (Doc. No. 21) is DENIED.