You are the attorney for a neighborhood association, and it has asked for your advice on an urgent problem. Unwanted land uses are planning to move into the neighborhood, including an adult-oriented book store, outdoor signs advertising tobacco, and a retail marijuana dispensary. The community is vehemently opposed because it believes that these uses may have harmful secondary effects, including increased crime, depressed property values, and an undesirable influence on children. The association wants to know what can be done through zoning to keep these uses out of its neighborhood, limit their number, or restrict their location.
There are many options for zoning locally unwanted land uses, commonly called LULUs. Site regulation can limit storefront characteristics such as lighting, outward-facing displays, and signage. These are traditional zoning regulations and are not controversial. Exclusion is a problematic and untested option. Density limitations can determine how many of these uses can locate in a neighborhood. Still, they can be challenging and raise free speech problems when applied to uses protected by the free speech clause of the federal constitution.
Spacing is a frequently used but not well-known zoning alternative that functions as a density limitation. It typically requires a minimum distance between unwanted land uses or a minimum distance from susceptible uses, such as schools, or both. Spacing is intended to prevent the harmful secondary effects that undesirable land uses are supposed to create by limiting their concentration and location. An example is a requirement that adult-oriented uses must be spaced at least 1,000 feet apart to disperse secondary effects, such as crime. Another example is a requirement that marijuana dispensaries must be located at least 500 feet from schools so that they will not influence children to use marijuana.
Spacing in zoning ordinances is an impromptu zoning strategy. It is not usually included in comprehensive plans and is an afterthought in zoning codes. Unless spacing prevents harmful external effects, it does not serve the traditional zoning function of separating harmful uses from each other. The argument for spacing is that it contains harmful effects by preventing the overconcentration of harmful uses or avoiding harmful effects on susceptible uses.
Spacing is a common strategy for adult-oriented uses to prevent these uses from creating harmful secondary effects. In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), the US Supreme Court held that a spacing requirement that prohibited adult motion picture theaters from locating within 1,000 feet of a residential zone, single-family or multiple-family dwelling, church, park, or school was not a violation of free speech.
The Court avoided a decision that the spacing requirement violated free speech by holding that it was aimed not at the content of films shown at the theaters but at preventing the undesirable “secondary effects that the theaters had on the surrounding community.” Id. at 44. The Court concluded spacing was “designed to prevent crime, protect the city’s retail trade, maintain property values, and generally ‘protec[t] and preserv[e] the quality of [the city’s] neighborhoods, commercial districts, and the quality of urban life,’ not to suppress the expression of unpopular views.” Id. at 45.
City of Renton decided that spacing is an appropriate remedy for the secondary effects of adult-oriented uses, which can be accepted, assuming that preventing secondary effects preempts free speech objections. The difficulty is that the Court’s decision is undercut by studies of the secondary effects of adult-oriented uses, which have failed to prove that they exist, although one court rejected these studies. Dr. John’s, Inc. v. City of Roy, 2007 WL 1302757, at *7-*10 (D. Utah May 2, 2007), aff’d sub nom. on other grounds, Dr. John’s v. Wahlen, 542 F.3d 787 (10th Cir. 2008).
City of Renton also considered another free speech argument, that the ordinance violated free speech because it did not leave reasonable alternative avenues of communication open for adult-oriented uses. The Court rejected this argument because more than five percent of Renton’s land area was available for adult theater sites. The Court did not consider whether spacing was invalid because it created an unacceptable quota on adult-oriented uses by limiting the number allowed in the city.
The Supreme Court later held that a similar spacing requirement for tobacco advertising was justified under the free speech clause. Still, the Court struck it down because it excessively limited outdoor advertising for these products throughout the state. In Lorillard Tobacco Company v. Reilly, 533 U.S. 525 (2001), a Massachusetts statewide regulation prohibited on-site and off-site advertising for smokeless tobacco and cigars within a 1,000-foot radius of a public playground in a public park, an elementary school, or a secondary school. Its purpose was to restrict smoking by children under the legal age by preventing access to these products by underage consumers.
The Court relied for its decision on Central Hudson Gas & Electric Corporation v. Public Service Commission, 447 U.S. 557 (1980). There the Court adopted four factors that it uses to decide the constitutionality of commercial speech regulation. Lorillard based its decision on two factors—a regulation must directly advance a substantial governmental interest and not be more extensive than necessary to serve that interest.
The spacing requirement satisfied the first of these two factors. The state extensively reviewed studies of the outdoor advertising problem and had “ample documentation” that outdoor advertising affected the underage use of smokeless tobacco and cigars. Regulating the advertising of smokeless tobacco and cigars to combat tobacco product use by minors was not based on mere speculation and conjecture.
The spacing requirement did not satisfy the second factor, which requires a reasonable fit between the means and ends of a regulatory scheme, a rule similar to substantive due process requirements. The regulation’s broad sweep showed that the state did not carefully calculate the costs and benefits of the burden on speech that the regulation created. A case-specific analysis was required. In this case, along with zoning restrictions, the spacing requirement would prevent outdoor advertising in 87 percent to 91 percent of Boston, Worcester, Springfield, and other areas. It would “constitute nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers.” Id. at 562.
The Supreme Court’s spacing cases are based on the free speech clause, which requires a heightened standard of judicial review for regulations that burden commercial speech. Much of this analysis tracks substantive due process and could be applied to spacing requirements for uses unprotected by the free speech clause, which receive a less demanding judicial review.
Retail marijuana dispensaries are the latest commercial battleground for spacing requirements. States that recently legalized the use of marijuana through statutes and constitutional amendments have enacted legislation that requires local governments to adopt spacing requirements for marijuana dispensaries. Spacing that requires a minimum distance from susceptible land uses, such as schools, is standard. There is no consensus on the needed spacing, and statutory distance requirements vary from 500 to 1,000 feet. Local governments may be authorized to increase the spacing distance beyond the state minimum.
Spacing requirements for retail marijuana dispensaries are the latest example of spacing for commercial uses, which has a 100-year history. Municipalities applied spacing to the early gasoline filling stations, which were thought to create hazardous and damaging secondary effects, such as noise, fire safety, traffic hazards, and an unattractive appearance. Most courts upheld spacing requirements for gasoline filling stations as reasonably related to public welfare because they mitigated the secondary effects they were expected to create.
Mitigating secondary effects could justify spacing requirements for marijuana dispensaries. Many of them cannot obtain banking services, which significantly increases the risk of robbery because they must deal with vast amounts of cash. The cash problem convinced a California court that a county’s requirement for minimum spacing between marijuana dispensaries and from schools and other land uses did not violate equal protection, even though this requirement was more restrictive than requirements applied to pharmacies. County of Los Angeles v. Hill, 121 Cal. Rptr. 3d 722 (Ct. App. 2011). Testimony in the case showed that marijuana dispensaries attract loitering and marijuana smoking on or near the premises, but studies dispute whether these secondary effects occur.
Spacing for marijuana dispensaries and other commercial uses may present another problem because they may prevent competition, which could violate the rule that the prevention of competition is not a proper purpose in zoning. This rule belongs in substantive due process, but the connection is unclear. It is a stand-alone requirement, and courts interpret it much as they interpret a rule included in a statute. An Arizona case shows how spacing requirements can create a control-of-competition problem, although the court did not discuss the control-of-competition rule. Dreem Green, Inc. v. City of Phoenix, 2019 WL 1959618 (Ariz. Ct. App. May 2, 2019).
A medical dispensary obtained the required state license. However, it could not use the license in the zoning district where it was allowed unless it received a variance from a one-mile spacing requirement between medical marijuana dispensaries. Other sites in the same zoning district but outside the area covered by the license could be used for a medical dispensary because the spacing requirement did not apply to them.
The Arizona court upheld area zoning variances granted by the zoning board that exempted the medical dispensary from the spacing requirement. Credible evidence supported the board’s implicit conclusion “that due to the Property’s location and surroundings, strict application of the Ordinance will deprive the Property of privileges enjoyed by similarly-zoned parcels in the district,” which were not subject to the spacing requirement. Id. at *3, ¶ 19. Dreem was a variance case, but the interplay of spacing and licensing requirements influenced the court’s decision.
Spacing is a zoning strategy that reflects a bias against targeted businesses and fears about secondary effects. It is a well-established but not well-known requirement for separating unwanted land uses from each other and from uses that could be damaged by proximity.
The judicial response to spacing is unsettled. The Supreme Court provided a mixed reaction when spacing was attacked under the free speech clause. State courts accepted the spacing of commercial uses that were believed to create secondary effects, but the judicial response to spacing for marijuana dispensaries is untested. Spacing must lose its impromptu place as a land use restriction and must be applied only when required to prevent known secondary effects from specified land uses. For discussion, see Daniel R. Mandelker & Harrison Hartsough, Spacing Requirements as a Land Use Strategy: The Marijuana Puzzle, 46 Zoning & Plan. Law Rep. (Jan. 2023).
