in Analysis and Commentary

(Yesterday, I said no writing this weekend. I couldn’t pass this up.)

The Charlotte Observer’s economic development reporter, Ely Portillo, penned a column yesterday, “Why you should care that Charlotte’s rewriting its zoning code.”

Portillo does a good job of taking a mind-numbingly boring regulatory process and turning it into something average residents might be able to think twice about, right from the beginning. Portillo opens up his column:

If you’re like most people, the words “zoning ordinance” probably make you want to take a long nap.

But pay attention as Charlotte launches an overhaul of the decades-old regulations that govern development and building. The new rules will set the tone for Charlotte’s growth for decades to come.

And if you think these codes don’t touch your life, think again: Zoning rules are what determine whether a fast food restaurant with a drive-thru gets built on that busy corner near your house.

“It’s an ordinance that essentially touches everyone,” said Ed McKinney, Charlotte’s interim planning director.

The city hopes to revamp its code and modernize it, making way for more urban design and development to “encourage the kind of mixed-use, walkable developments that have been exploding in popularity,” Portillo reports. “Think Sharon Square in SouthPark, which includes a Whole Foods, apartments, offices, restaurants and stores, all packed into a small site at Sharon and Fairview roads.”

Portillo goes into a good bit of detail on why the revamp is needed. You should definitely check out his full column.

I want to take just a few minutes to tell you why LGBT residents should care about these zoning revamps, too. At first glance, you might not think there’s any LGBT angle to these boring old zoning regulations. But there is, and Charlotte’s zoning laws have in the past been detrimental to and discriminatory toward the LGBT community. It’s all part of a larger picture wherein local laws and ordinances — zoning, licensing, policing and more — have a direct effect on the lives of LGBT residents and business owners.

Current city zoning laws target adult businesses

Charlotte’s current zoning regulations were adopted in 1992. Along with that revamp, a new sexually-oriented business ordinance was adopted in 1994, applying new zoning regulations to businesses like strip clubs and adult bookstores.

It was a law that was challenged by Donald O’Shields, then-owners of Chaser’s, a primarily gay men’s strip club on The Plaza and 36th St., as well as the owner of an adjacent gay adult bookstore and several other adult businesses. The case took years snaking its legal path all the way up to the Supreme Court where justices there declined to hear the case, effectively upholding the city’s zoning ordinances and deciding against O’Shields and other business owners. I wrote in-depth about the case when it reached its final legal conclusion in the fall of 2009.

The goal of the revamped zoning rules at the time, the city argued, was to decentralize the location of adult businesses and provide greater buffers between them and residential areas, churches, schools and parks. To justify the change, the city argued that adult businesses “lowered property values and increased crime rates tend to accompany and are brought about by the concentration of adult establishments.”

It was a claim the plaintiffs flatly rejected, arguing that the new rules violated their First Amendment rights and that the city had not sufficiently justified a link between their individual businesses and crime or other adverse affects.

From my reporting in 2009:

Independence News owner Roger Moore told Q-Notes the evidence the city used to pass and defend the ordinance did not apply to him.

“The whole reason for the city’s action to rezone was because they said these businesses were linked to increased crime and drove down property values,” he said. “We presented evidence that it does not. This neighborhood, NoDa, has gone uphill and it has exploded over the past few years. People are buying up houses left and right, renovating them and building condos all around me. Property values are probably double now than what they used to be. I have no crime here at this store, except for a robbery years ago.”

Important to note is one study of Charlotte adult businesses published in 2004 (PDF) that found “the presence of an adult nightclub does not increase the number of crime incidents reported in localized areas surrounding the club … as compared to the number of crime incidents reported in comparable localized areas that do not contain such an adult business.”

The study authors continued: “Indeed, the analyses imply the opposite, namely, that the nearby areas surrounding the adult business sites have smaller numbers of reported crime incidents than do corresponding areas surrounding the three control sites studied.”

Zoning variances denied to gay businesses

Regardless of any arguments on the adult business’ side, the Supreme Court’s decision put to bed any lingering dispute.

“We’ve been in court with them since 2000 or 2002 with litigation at the trial court level to the Supreme Court,” City Attorney Bob Hagemann told me at the time. “The courts have ruled. They lost. They need to comply with the ordinances.”

Each of the businesses were forced to change their business models, move to new locations or apply for zoning variances.

Chaser’s changed their business model — strippers stopped “stripping” and became more like go-go dancers.

Independence News was eventually forced to move, but only after being denied a zoning variance.

And therein lies some of the prejudice and bias in the zoning process. Adult businesses catering to primarily straight clientele have received zoning variances. The gay ones? Nada.

Again from my 2009 reporting:

Moore thinks the city’s decisions on zoning and variances — or exceptions to zoning ordinances — aren’t handled fairly.

“These Adam & Eve stores, Priscilla’s and Red Door — none of them are any different from my business except they have some lingerie,” Moore said. “They carry the same toys, the same DVDs — they carry everything.”

In the late-1990s, Independence News unsuccesfully applied for a variance.

Fred Frazier, who owns the real estate where Independence News and Chasers are located, says a bar of some type has operated there since the 1950s. He said other properties with closely-placed adult establishments have been given variances in the past.

On Independence Blvd., Adam & Eve and Red Door stores are in the same shopping center with the Crazy Horse strip club.

City authority has influence on local LGBT life

And it’s not just strip clubs or other adult establishments on the line here. City codes like zoning, permitting and licensing can have a tremendous influencing effect on businesses, their operations, where they are located and what they can do. Recently, debate and scrutiny has surrounded the city’s dancehall permitting process, which one attorney has said unfairly targets minority club owners, including clubs like The Scorpio.

And zoning, other laws and law enforcement can also have a larger effect on the lives and residential choices of LGBT people, as one 2012 North Carolina Law Review article notes, from authors Yishai Blank and Issi Rosen-Zvi:

The regulation of sexuality has been decentralized, with cities being the main locus where the most important issues affecting the lives of gays and lesbians are decided. This “localization of sexuality” happened as a result of a lack of comprehensive federal protection of gays and lesbians, the limited protection given to them by states, and the powers which cities regularly possess. These powers, which include zoning, business licensing, districting, education, and other police powers, are used by cities in ways that either benefit or harm sexual minorities. This legal structure can partly explain, notwithstanding other social and historical factors, the residential patterns of gays and lesbians who continue to concentrate in a relatively small number of cities.

And, I’d add, that LGBT people have historically, even in Charlotte, tended to concentrate in relatively small portions of cities.

LGBT people, historically, have sought to live near and in close proximity to each other, to agencies that serve them and businesses which are owned by fellow community members or cater to their interests.

The fact that gay-oriented and gay-owned businesses, both adult and non-adult, first situated themselves years ago in neighborhoods like Plaza Midwood and NoDa, I’ll contend, was a driving force behind the large number of LGBT people we still find living in these neighborhoods and in the larger 28205 ZIP code generally.

Additionally, I’d argue this driving force also led to Plaza Midwood, NoDa and East Charlotte areas becoming home to a significant number of non-adult-oriented LGBT non-profits, agencies or businesses, including at one time or currently the LGBT Community Center of Charlotte, Metropolitan Community Church of Charlotte, New Life Metropolitan Community Church, Unity Fellowship Church/Sacred Souls Community Church, Time Out Youth, Charlotte Pride, White Rabbit and QNotes, as well as a dizzying, diverse array of LGBT-owned small businesses like salons, bars or restaurants and LGBT professionals like lawyers. This kind of concentration — of businesses and residents — eventually led to anti-gay law enforcement stings and crackdowns in East Charlotte parks like Kilborne.

Some LGBT Charlotteans often talk about their desire for a “gayborhood.” An area of the city they can call their own. We’ve had them for years — ‘hoods like Plaza Midwood and NoDa — just not to the same extent as larger cities’ Castros, Greenwhich Villages, Chelseas, Boystowns or Midtowns.

If LGBT Charlotteans still clamor for something like a gayborhood, or, simply, if we want to ensure the city isn’t abusing its power to discriminatorily target LGBT-owned businesses or residents or detrimentally affect where we choose to live or do business, then city zoning and licensing — as boring, as wonkish and as tedious of issues they may be — need to be on our leaders’ radar.

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