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The Limits of Regulating Morality through Zoning Regulations

Zoning regulations are a reflection of a community’s identity and the image it desires to project to the larger world.   Some otherwise lawful activities are perceived to be unsavory, immoral or conducive to crime. As such, they are often regulated more stringently than other lawful businesses. Although some of these activities can generate more police reports and government oversight than other kinds of businesses, often such establishments are safe and well operated. Even so, many community residents have moral, religious, or cultural beliefs that cause them to oppose the existence of these types of businesses anywhere at all. Not only do they fight to shutter existing businesses, but they also support zoning regulations that would prevent any new such businesses from opening within the borders of their community. Examples of such activities include sexually oriented businesses (such as adult nightclubs and book stores), gambling establishments, tattoo parlors/ piercing studios, pool halls and internet cafes that offer video games with sweepstakes prizes.

The law, however, sets limits on the power of zoning to eliminate or unreasonably restrict these types of businesses from operating within a community. For example, many states, including Kentucky, have constitutional and statutory prohibitions from using zoning laws to force a business to close down , if that business is not a criminal enterprise or otherwise in violation of applicable health safety or welfare laws.

If the government used its zoning powers to force such an otherwise lawfully operating business to close down, the business would have a viable claim for taking its property without compensation.   The law also prohibits communities from entirely eliminating otherwise lawful uses from opening within its borders. Instead, zoning regulations must accommodate businesses that are considered morally questionable or in need for more stringent oversight.

Rather than making such activities permitted by right in all zones, an acceptable approach is to make them permitted only in certain business zones, or require spacing them a certain distance from residential zones or making them a conditional use that requires board of adjustment approval and a public hearing. This approach balances the community’s need to control such uses with the businesses’ right in a free country to offer activities that are not considered morally acceptable by a large segment of the population.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

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