author: DIETZEN, Judge.

text:
    WATAB TOWNSHIP CITIZEN ALLIANCE, et al., Relators, v. BENTON COUNTY BOARD OF COMMISSIONERS, et al., Respondents, Scott P. Jarnot Development, LLC, Respondent, Scott P. Jarnot, Respondent (A06-378); Watab Township Citizen Alliance, et al., Appellants, v. Benton County Board of Commissioners, Respondent (A06-1069).
    Nos. A06-378, A06-1069.
    Court of Appeals of Minnesota.
    Feb. 27, 2007.

      James P. Peters, Kama M. Peters, Peters & Peters, PLC, Alexandria, MN, for relators/appellants.
    Robert J. Raupp, Benton County Attorney, Foley, MN and Joseph J. Langel, Ratwik, Roszak & Maloney, P.A., Minneapolis, MN, for respondents County of Benton and Benton County Board of Commissioners.
    Scott P. Jarnot, Scott P. Jarnot DVLP, LLC, Brooklyn Park, MN, pro se respondent A06-378.
    Considered and decided by PETERSON, Presiding Judge; WILLIS, Judge; and DIETZEN, Judge.
   OPINION

DIETZEN, Judge.

In these consolidated appeals, relators Watab Township Citizens Alliance, et al., challenge the denial of their petition for an environmental assessment worksheet (EAW) by respondent Benton County, arguing that the proposed project may have the potential for significant environmental effects. They also argue that the county’s decisions to rezone and approve the preliminary and final plat applications for the subject property were arbitrary, capricious, and contrary to law. Because we conclude that the county’s decisions not to require an EAW and to approve the preliminary and final plat applications with conditions did not involve an error of law and were supported by substantial evidence, we affirm. And because the county’s rezoning decision is a legislative act not properly before this court on certiora-ri, we dismiss that portion of the appeal.

FACTS

Watab Township Citizens Alliance (WTCA) is a nonprofit organization whose members reside in Watab Township, near the proposed Lake Andrew development project (project). Developer Scott Jarnot (Jarnot) owns 75.3 acres of land on which he proposes to develop 61 residential lots. In late 2004, Jarnot applied to Benton County (county) to rezone the subject property from A-2 (agricultural) to R-3 (residential) and for preliminary plat approval. Jarnot also proposed a community water well and a community waste-water treatment facility for the project. Following a hearing, the county’s planning commission recommended denial of the rezoning and preliminary plat applications for the project. Subsequently, the county board considered the matter and approved the applications for rezoning and preliminary plat with conditions, which included conducting a well draw-down test to determine if the project would adversely affect existing neighboring wells.

In February 2005, a petition for an EAW signed by the requisite number of individuals was submitted to the Minnesota Environmental Quality Board (MEQB). The petition, together with the cover letter, raiséd concerns that the proposed project would be served by a township road that was substandard and unsafe, that rezoning to R-3 would result in illegal “spot zoning,” that waste-water contamination discharged from the project would adversely affect adjoining wetlands, and that the project had the potential to deplete the water table. In March 2005, the MEQB assigned the petition-review process to the county as the responsible governmental unit (RGU).

The county requested that Jarnot and the Department of Natural Resources (DNR) provide data addressing the water-supply issue. Jarnot responded by conducting water draw-down tests and compiling data obtained from the DNR. Dan Lais, a DNR hydrologist, submitted his “quick assessment” of Jarnot’s pump-test data to the county, which concluded that the project may cause one neighboring well to draw down below the pump setting and that other neighboring wells may need to be connected to Jarnot’s water supply, or have their pumps lowered to maintain water supply. Additional data was submitted by Jarnot’s engineer, who reviewed the water test pumping data and estimated the volume of waste generated and potable water attributable to the proposed project.

In April 2005, the county board denied WTCA’s petition for an EAW, reasoning that the project did not have the potential for significant environmental effects and that any potential environmental effects would be mitigated by the state authorities that have regulatory and permitting authority over the project’s waste-water and water-supply systems.

In May 2005, WTCA commenced a declaratory-judgment action challenging the county’s decision not to require an EAW. Jarnot then applied to the Minnesota Pollution Control Agency (MPCA) for a National Pollutant Discharge Elimination System (NPDES) permit, which was required for the community waste-water system for the project. In August 2005, the MPCA wrote Jarnot stating that because of a recent decision of this court involving the protection of impaired waters, the MPCA was reevaluating its NPDES permit program. As a result, Jarnot redesigned the waste-water treatment facility for the project to avoid discharge into adjacent wetlands. In November 2005, the MPCA issued an NPDES permit for the project with a permitted capacity of 110 residential units.

Jarno.t also applied to the DNR for a water-appropriation permit for the community water well proposed by the project. Following discussions with the DNR, Jar-not agreed that, as a condition of the permit, he would be responsible to correct any water supply problems for neighboring wells caused by the project. Subsequently, the DNR issued the water-appropriations permit subject to the agreed-on condition.

Jarnot submitted revised applications for preliminary and final plat approval to reflect changes required by the MPCA for the community sewage-treatment system. The revised plans were the subject of a public hearing before the planning commission and the county board. At both hearings, there was extensive discussion regarding the NPDES permit and its permit capacity of 110 units, the DNR water-appropriations permit, and other citizen concerns regarding the potential environmental impact of the project. The county board continued the matter to its January 2006 meeting to reconsider its EAW decision and the zoning applications in light of the changes in the proposed project. As a result, the parties in this proceeding agreed to continue a previously scheduled summary-judgment hearing for WTCA’s declaratory-judgment action until after the county board hearing.

At the January 17, 2006 county board hearing, the DNR hydrologist confirmed that the DNR had issued a water-appropriation permit for the project and that appropriate measures had been taken— including conditions to the DNR permit— to resolve any potential adverse interference with neighboring wells. The permit capacity of the community waste-water treatment facility was discussed at length, and Jarnot confirmed that the actual construction of the facility would be limited to the 61 units proposed by the project. Following the hearing, the county board confirmed its decision that the EAW was not required and approved Jarnot’s applications for rezoning and amended preliminary and final plat.

The district court then granted the county’s motion for summary judgment, concluding that the project as proposed did not have the potential for significant environmental effects, and, therefore, an EAW was not required. This appeal follows. Separately, WTCA seeks certiorari review of the county’s decisions to rezone and grant preliminary and final plat approval of the proposed project. By previous order, these matters were consolidated for review.

ISSUES

I. Did the county err by concluding that the project did not require an EAW?

II. Is this court procedurally barred from considering WTCA’s certiorari appeal of the county’s rezoning decision?

III. Did the county err by granting the developer’s application for amended preliminary and final plat approval?

ANALYSIS

I.

WTCA contends that the district court erred by concluding that the proposed project did not require an EAW. On appeal from summary judgment, appellate courts review the governmental body’s EAW determination on the basis of whether it was unreasonable, arbitrary, or capricious, without according deference to the district court’s review. Citizens Advocating Responsible Development v. Kandiyohi County, 713 N.W.2d 817, 832 (Minn.2006). An agency’s decision is arbitrary or capricious if the agency (a) relied on factors the legislature never intended it to consider, (b) entirely failed to consider an important aspect of the problem, (c) offered an explanation for the decision that runs counter to the evidence, or (d) rendered a decision so implausible that it could not be ascribed to a difference in view or the result of agency expertise. Pope County Mothers v. Minnesota Pollution Control Agency, 594 N.W.2d 233, 236 (Minn.App.1999). We will reverse an agency decision if its findings are unsupported by substantial evidence. Kandiyohi County, 713 N.W.2d at 832. In our review, we probe whether the agency has taken a “hard look” at the salient problems and has “genuinely engaged in reasoned decision-making.” Id. (quotation omitted).

The MEQB has promulgated rules regarding the environmental-review process. Under these rules, the MEQB reviewed the petition for an EAW, determined that the petition complied with the rules, and forwarded it to Benton County as the “responsible governmental unit” (RGU) to determine whether the proposed project required the preparation of an EAW. Minn R. 4410.1100 (2005).

Minn.Stat. § 116D.04 (2006) sets forth the criteria for determining when an environmental-impact statement (EIS) and an EAW must be prepared for a project. It provides that an EIS must be prepared when a project has the potential for significant environmental effects resulting from any government action. Id. In contrast, an EAW is required whenever material evidence is presented by petitioners showing that the project may have the potential for significant environmental effects. Compare Minn.Stat. § 116D.04, subd. 2a(a) and subd. 2a(c). Thus, the criteria for preparation of an EAW (“may have the potential for significant environmental effects”) is lower than the criteria for preparation of an EIS.

WTCA first argues that an EAW was required because it presented a petition that contained 35 signatures, a letter briefly stating WTCA’s major concerns, a testimonial letter signed by two neighboring property owners, two maps depicting the project site and various geological features of the area, and other evidence showing the project may have the potential for significant environmental effects. The county argues that WTCA merely presented the unsubstantiated fears and concerns of its members rather than material evidence.

The threshold requirement under the EAW statute is whether there is material evidence that the project may have the potential for significant environmental effects. Minn.Stat. § 116D.04, subd. 2a(c); Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 207 (Minn.1993). Material evidence is not defined in the statute or the rules promulgated by the MEQB. Minn.Stat. § 116D.04, subd. 5a. We interpret a statute by giving its words their plain and ordinary meaning. Minch v. Buffalo-Red River Watershed Dist. 723 N.W.2d 483, 487 (Minn.App.2006), review denied (Minn. Jan. 24, 2007); see also Minn.Stat. § 645.08(1) (2006) (mandating that words and phrases be construed according to their common and approved usage).

We conclude that “material” evidence means such evidence as is admissible, relevant, and consequential to determine whether the project may have the potential for significant environmental effects. See The American Heritage Dictionary of the English Language 1080 (4th ed.2000) (defining “material”). In this case, the need for an EAW is determined by an administrative agency, i.e., the MEQB and the county, in an administrative proceeding. Thus, we conclude that under Minn.Stat. § 116D.04, subd. 2a(c), “material evidence” is evidence that is both admissible in an administrative proceeding before a state agency and relevant and consequential to whether the project may have the potential for significant environmental effects. Allegations of vague or generalized fears and concerns are therefore not sufficient under the statute. But evidence that is admissible, relevant, and consequential to determine whether the project may have the potential for significant environmental effects does qualify as material evidence. See Minn. R. 4410.1100, subp. 6 (“The RGU shall deny the petition if the evidence presented fails to demonstrate that the project may have the potential for significant environmental effects.”).

The MEQB has identified four criteria that the RGU must use to evaluate a project’s “potential for significant environmental effects.” Those factors are:

A. type, extent, and reversibility of environmental effects;
B. cumulative potential effects of related or anticipated future projects;
C. the extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority; and
D. the extent to which environmental effects can be anticipated and controlled as a result of other available environmental studies undertaken by public agencies or the project proposer, including other EISs.

Minn. R. 4410.1700, subps. 6, 7 (2005). Because the criteria apply explicitly to the need for an EIS and not an EAW, appellant argues that the county erred in considering the criteria. We disagree.

In determining the need for an EAW, the RGU must review all of the material evidence to determine whether the proposed project may have the potential for significant environmental effects. Minn. Stat. § 116D.04, subd. 2a(c). The MEQB criteria are relevant factors in considering whether the proposed project may harm the environment because the rules regarding both EAWs and EISs use the language of “significant environmental effects.” Compare Minn. R. 4410.1100, subp. 6 and Minn. R. 4410.1700, subp. 6. The county used these factors to examine the environmental factors at its April 15, 2005 board meeting and was presented with data from the MPCA, the DNR, and the Minnesota Department of Health, on water appropriation, well-testing, and waste-water treatment. WTCA argues that four potential environmental impacts require the preparation of an EAW.

A. Township Road

WTCA argues that the current township road lacks capacity to handle the additional traffic generated by the development of 61 homes, that the road is unsafe, and that the additional traffic will create additional noise and dust in the surrounding area.

The county found that “[t]he sufficiency of the existing road [was] not an environmental issue” and that it could be addressed or mitigated through the placement of conditions on the rezoning or plat approval. See Minn. R. 4410.1700, subp. 7 (allowing RGUs to consider the extent to which potential environmental effects are subject to mitigation by ongoing public regulatory authority). The district court declined to address the issue.

We conclude that the impact of additional vehicles generated by the' project may be an environmental effect. But WTCA did not present material evidence on this issue. Absent the presentation of such material evidence, no basis exists to conclude that the additional traffic may have the potential to significantly effect the environment. Minn.Stat. § 116D.04, subd. 2a(c).

B. Spot Zoning

WTCA next argues that the rezoning of the subject property from A-2 to R-3 constitutes illegal spot zoning, which may result in the potential for significant environmental effects. “Spot zoning” applies to “zoning changes, typically limited to small plots of land, which establish a use classification inconsistent with surrounding uses and create an island of nonconforming use within a larger zoned district.” Rochester Ass’n of Neighborhoods v. City of Rochester, 268 N.W.2d 885, 891 (Minn.1978).

The county board found that the issue of “spot zoning” could be “addressed through the rezoning process during the course of future public hearings” and that “[s]pot zoning concerns do not relate to the ‘environment’ ” as that term is defined in Minn. R. 4410.0200, subp. 23 (2005), but instead involve the “appropriateness of the proposed rezoning in the context of the County’s Comprehensive Plan.” The district court declined to address the issue.

Essentially, WTCA argues that the project will create an R-3 residential zone within an A-2 agricultural zone located four miles from the nearest city limits, which will cause conflicting land uses that may result in the potential for significant environmental effects. Incompatible land uses may have a social impact on the surrounding area but such an impact is not necessarily an “environmental effect.” Id. Rather, land-use classifications are the county’s expression of how it desires the various areas of the county to develop. Such goals and policies are in the nature of legislative acts that are within the domain of the governing body. Rochester Ass’n of Neighborhoods, 268 N.W.2d at 888, 891. Appellant has failed to produce any material evidence that the rezoning of the property may result in an adverse environmental effect.

C. Waste-Water Discharge

WTCA argues that the project will result in the discharge of waste-water into adjacent wetlands, which may have the potential for significant environmental effects. Because the project will require an NPDES permit from the MPCA and the waste-water discharge is subject to ongoing regulatoiy review by the MPCA, the county board concluded in April 2005 that any significant environmental effects from waste-water discharge would be mitigated. See Minn. R. 4410.1700, subp. 7.

Because of a decision of this court in an unrelated matter, Jarnot amended the project in August 2005 to eliminate the discharge into the wetlands, and the MPCA then issued a NPDES permit for the project in November 2005. Following a public hearing in which WTCA was given an opportunity to present evidence on the waste-water issue, the county board reaffirmed its decision not to require an EAW.

WTCA argues that anything that occurred after the county board decision in April 2005, which included the amendment to the project to eliminate waste-water discharge into the environment, the NPDES permit, and the subsequent action by the county board in January 2006, is irrelevant and should not be considered. The district court concluded that the record should include all information gathered through January 2006 because the amended plat “contains substantial changes which affect the need for an EAW.”

We conclude the NPDES permit-application process and subsequent review by the county board in January 2006 were properly considered by the district court for at least three reasons. First, MEQB rules provide that a new EAW is required whenever a RGU has declined a request for an EAW, but before a project has received final approval, if the RGU determines that a substantial change has been made on a project that may have the potential for significant environmental effects. Minn. R. 4410.1000, subp. 5 (2005). The purpose of the rule is to provide for additional review by the RGU to determine if a project, as amended, may result in the potential for significant environmental effects and, therefore, an EAW is required. Here, the additional review of the amended project conducted by the county in January 2006 was not only proper, but it was also required by the rule.

Second, the NPDES permit-application process is relevant to consider “the extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority.” Minn. R. 4410.1700, subp. 7. Third, WTCA invited review of evidence gathered after the county board’s decision and, therefore, waived its right to object to the consideration of the changes in the project.

WTCA also argues that because the NPDES permit is for 110 units, the project is in a mandatory EAW category. An EAW is mandatory for residential developments of more than 100 units. Minn. R. 4410.4300, subp. 19 (2005).

Here, the NPDES permit issued by the MPCA has the upward capacity of 110 residential units. But the county required that the developer, as a condition of the zoning approvals, execute a developer’s agreement and a separate agreement limiting the physical capacity of the waste-water treatment facility to no more than 61 residential units. The county has both legally and physically limited the project to 61 residential units. Thus, the project is limited to 61 residential units and is not in the mandatory EAW category.

D. Depletion of Water Supply

WTCA argues that due to the shallowness of granite bedrock in the area around the development, there is a limited water supply in the existing wells, which will be depleted by the proposed project. At its January 2006 meeting, the county board concluded that the water quantity used by the project will be regulated through a water-appropriation permit issued by the DNR in December 2005.

Here, Jarnot’s engineer, North American Wetland Engineering, presented test-pumping data for neighboring wells that showed no adverse impact of the project. Based on the opinion of the DNR hydrologist, the county conditioned approval of the project on Jarnot’s commitment to lower the existing wells or connect the wells to the project’s water supply. The county noted that future draw-down tests would be required as a condition of plat approval. In short, the county’s conclusion that the potential impact of the project on neighboring wells was mitigated by the ongoing regulatory review of the DNR and did not pose the potential for significant environmental effects is supported by the record.

II.

WTCA argues that the county’s decision to grant Jarnot’s application to rezone the property was arbitrary, capricious, and contrary to law. The county argues that this court is procedurally barred from considering WTCA’s certiorari appeal on the rezoning of the project. See Honn v. City of Coon Rapids, 313 N.W.2d 409, 414 (Minn.1981) (stating that certiorari is not appropriate to review legislative acts). We agree. Parties wishing to challenge legislative decisions by local governmental bodies “must first litigate the question of their validity in district court.” Dead Lake Ass’n, Inc. v. Otter Tail County, 695 N.W.2d 129, 134 (Minn.2005).

In Honn, the supreme court held that certiorari is not appropriate to review legislative acts in any context and that a governing body’s decision to rezone was a legislative act. Honn, 313 N.W.2d at 414-15. A subsequent decision of this court held that a person may obtain review of a county board’s zoning decision, which is legislative in nature, only by initiating a declaratory-judgment action. In re Merritt, 537 N.W.2d 289, 290 (Minn.App.1995). Therefore, this court does not have jurisdiction to hear WTCA’s claim that the county’s approval of Jarnot’s zoning amendment was arbitrary, capricious, and contrary to law. The appeal is dismissed.

III.

WTCA next argues that the county’s zoning decisions approving Jar-not’s revised preliminary and final plat applications with conditions were arbitrary, capricious, and contrary to law. The denial or approval of a preliminary or final plat application is a quasi-judicial administrative decision. Hurrie v. County of Sherburne, 594 N.W.2d 246, 249 (Minn.App.1999). When an agency performs a quasi-judicial function, we apply the substantial-evidence test to determine whether the decision is supported by legally sufficient reasons and factually supported in the record. Id. The decision must be supported by substantial evidence on the record, which addresses the requirements of the applicable ordinances. Id. at 250. “[W]hen an ordinance specifies minimum standards to which subdivisions must conform, local officials lack discretionary authority to deny approval of a preliminary plat that meets those standards.” PTL, L.L.C. v. Chicago County Bd. of Comm’rs, 656 N.W.2d 567, 571 (Minn.App.2003).

A. Inadequate Environmental Review

WTCA argues that the county’s approval of Jarnot’s final plat was arbitrary because Minnesota law requires that environmental review be completed before a project may receive final approval from the zoning authority. Respondent argues that the county’s zoning approval did not occur until after the petition for an EAW was denied.

Minn.Stat. § 116D.04, subd. 2a(b), provides that when an EAW is completed, the RGU shall publish notice of the completion and allow for a 30-day comment period in order to assess the need for an EIS. Although the statute does not address the denial of an EAW, MEQB rules do. Minn. R. 4410.3100, subp. 1, states that a project may not be started, and final governmental approval may not be given to a project, until there has been a denial of an EAW petition.

Here, the petition for an EAW was denied in April 2005, and that decision was reaffirmed in January 2006. Subsequently, the county granted approval of Jarnot’s applications for amended preliminary and final plat. Therefore, there was no violation of the rule.

B. Inadequate Access Road

WTCA argues that the final plat approval was arbitrary because there is a substandard access road to the project, and the Benton County Development Code (code) requires all existing roads in the vicinity to be adequate for public safety. The county argues that the section of the code in question does not address the requirements of township access roads outside the subdivision.

The interpretation of county zoning ordinances is a question of law, which this court reviews de novo. Buss v. Johnson, 624 N.W.2d 781, 784 (Minn.App.2001). “A zoning ordinance should be construed (1) according to the plain and ordinary meaning of its terms, (2) in favor of the property owner, and (3) in light of the ordinance’s underlying policy goals.” SuperAmerica Group, Inc. v. City of Little Canada, 539 N.W.2d 264, 266 (Minn.App.1995), review denied (Minn. Jan. 5, 1996).

Sections 10.11.1 and 10.11.2 of the code, which fall under the hearing of, “Subdivision Design Standards,” require that county streets and roads “shall be considered” in relation to, inter alia, “circulation of traffic,” “public convenience and safety,” and “the proposed uses of the land” to be served by the streets. Here, the board “considered,” at length, the issues raised regarding the township road and concluded that the plat met the standards for county streets and roads outlined in the code. On this record, the county did not abuse its discretion by not finding a violation of the code or by conditioning plat approval on improvements to the township road.

WTCA next argues that section 10.13.4 of the code requires the county board to incorporate the recommendations of the county engineer regarding roads. The record does not contain a recommendation of the county engineer regarding the township road or whether it was unsafe. But the county engineer indicated in his report that the township road was serviceable. Thus, the county’s decision not to require improvements to the township road was not arbitrary.

C. Failure to Follow “Two-Step” Plat-Approval Process

WTCA also argues that the county failed to follow its own ordinance with respect to the proper sequence of plat approvals, i.e., first considering the preliminary plat and then the final plat. Essentially, WTCA argues that the county erred by not allowing the public a sufficient time to review the final plat after approval of the amended preliminary plat.

Section 10.8.1 of the code states:

Approval of a preliminary plat is an acceptance of the general layout as submitted, and indicates that the subdivider may proceed toward final plat approval in accordance with the terms and provisions of this ordinance. However, approval of the preliminary plat in no way assures approval of the final plat.

The above quoted provision does not prohibit approval of a final plat immediately following approval of an amended preliminary plat. The code contemplates that a final plat review would occur sometime after preliminary plat approval. Here, the original preliminary plat was approved a year in advance of the final plat, and the only significant change on the amended preliminary plat was a redesigned waste-water treatment facility. Numerous hearings were held and large amounts of evidence and data were collected by the county after the original preliminary plat was approved and before final approval of the project as amended. Therefore, WTCA’s claim lacks merit.

DECISION

Because we conclude that the county’s decisions not to require an EAW and to approve Jarnot’s applications for preliminary and final plat with conditions did not involve an error of law and were supported by substantial evidence, we affirm. Because the county’s rezoning of the development property is a legislative act, it is not properly before this court on certiorari, and, therefore, we dismiss that portion of the appeal.

Affirmed in part; dismissed in part.

      . In re Cities of Annandale and Maple Lake NPDES/SDS Permit Issuance for the Discharge of Treated Wastewater, 702 N.W.2d 768 (Minn.App.2005) (holding, inter alia, that in the absence of a total maximum daily load, a permit may issue to a new source that does not otherwise cause or contribute to an impairment of waters with impaired status), review granted (Minn. Oct. 26, 2005).

      . "Governmental action” means activities, including projects wholly or partially conducted, permitted, assisted, financed, regulated, or approved by units of government including the federal government. Minn.Stat. § 116D.04, subd. la(d).

      . These provisions of the code were formerly numbered sections 10.4.1 and 10.4.2 and were included in the appendix to respondent's brief.

      . This provision was formerly numbered 10.7.4.

      . This provision was formerly numbered 10.5.0.


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2007 ND 28
    McCROTHERS CORP. d/b/a Tree City Bar, and Luke Berger, d/b/a Silver Dollar Bar, Plaintiffs and Appellants, v. CITY OF MANDAN, Defendant and Appellee.
    No. 20060127.
    Supreme Court of North Dakota.
    Feb. 28, 2007.

      Justin J. Vinje (argued) and Ralph A. Vinje (appeared), Vinje Law Firm, Bismarck, N.D., for plaintiffs and appellants.
    Malcolm H. Brown, Malcolm H. Brown, P.C., Bismarck, N.D., for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] McCrothers Corporation, doing business as the Tree City Bar, and Luke Berger, doing business as the Silver Dollar Bar, appealed from a summary judgment dismissing their actions challenging the constitutionality of Mandan city ordinances regulating exotic dancing and adult cabaret entertainment. We conclude the ordinances do not violate the free speech rights of McCrothers and Berger and did not cause an unconstitutional taking of them property without just compensation. We affirm.

I

[¶ 2] Since at least 1979, Mandan has prohibited “[ajppearances, entertainment or performances of any type consisting of or containing any nude performer or nude dancer, or topless female dancer” in alcoholic beverage licensed premises. Mandan Code of Ordinances § 12 — 01—18(2)(d) (1994). In June 2003, the Mandan Board of City Commissioners adopted ordinances regulating exotic dancing patterned after ordinances this Court upheld more than 25 years ago in Olson v. City of West Fargo, 305 N.W.2d 821 (N.D.1981). Ordinance No. 961 amended the Mandan Code of Ordinances to prohibit alcoholic beverage licensees from hosting “entertainment for more than one day a week any given week without first having obtained a cabaret license ...” Ordinance No. 961 further provides:

5. No live performances are permitted on an alcoholic beverage licensed premise which contains any form of dancing. Such prohibition on dancing does not include the incidental movement or choreography of singers or musicians which are made in connection with their singing or playing of a musical instrument, provided the dancing does not include the acts prohibited under this section. This restriction applies to all alcoholic beverage licensed premises whether or not they have a cabaret license.

“Live performances” are defined under Mandan Code of Ordinances § 12-01-18(l)(b) as “any person who for consideration, monetary or otherwise, performs in person on a licensed premises as a singer, musician, dancer, comedian, model or any other type of entertainer.” Ordinance No. 961 prohibits live performances on alcoholic beverage licensed premises involving “the removal of clothing, garments or any other costume,” and these restrictions apply to all alcoholic beverage licensed premises “whether or not they have a cabaret license.”

[¶ 3] Ordinance No. 963, which created Chapter 21-10 of the Mandan Code of Ordinances, declares the purpose for regulating “adult entertainment establishments,” defines “[ajdult cabaret entertainment,” “[ajdult establishments,” “[a]dult uses,” and “[s]pecified sexual activities,” and restricts the areas within the city in which the establishments may be located. Ordinance No. 963 also provided an amortization period of two years from June 27, 2003, for nonconforming uses to continue operations, and provides penalties for violations of the chapter.

[¶ 4] Ordinance No. 964 again declares the purposes for regulating adult entertainment establishments, sets forth additional findings, defines “[ajdult [ejntertainment” and other terms, and details the procedures for obtaining an “Adult Cabaret License.” Ordinance No. 964 further outlines the standards of conduct for operation of the establishments and the procedures for suspension and revocation of licenses.

[¶ 5] McCrothers owns and operates the Tree City Bar and Berger owns and operates the Silver Dollar Bar. Both bars are retail on-sale alcoholic beverage businesses located adjacent to one another on Main Street in Mandan. For 14 and 22 years, respectively, the Tree City Bar and the Silver Dollar Bar offered entertainment in the form of exotic dancing, which is now defined by the Mandan city ordinances as adult entertainment. When a third party sought to open another adult entertainment establishment on Main Street, the City Commissioners took action to enact the ordinances. The district court described how the Mandan ordinances affected these bars:

Although no evidence was offered as to the precise nature of the dancing entertainment that was offered at both the Silver Dollar Bar and the Tree City Bar, it appears it would be classified as adult entertainment. Thus, under these three ordinances, neither the Silver Dollar Bar nor the Tree City Bar can offer this adult entertainment and hold a retail alcoholic beverage license at the same time. And if they want to offer adult entertainment without alcoholic beverages, they must first obtain a cabaret license, and then they can only operate such a business in areas zoned MB, MC and MD Industrial, which would require the removal of their businesses from their current Main Street locations.

[¶ 6] In June 2005, McCrothers and Berger brought separate actions seeking to enjoin enforcement of the ordinances on the ground that application of the ordinances to them constituted a taking of their property in violation of N.D. Const, art. I, § 12, and the Fifth Amendment to the United States Constitution. The district court issued orders to show cause and temporary restraining orders pending hearings, and the parties stipulated to consolidate the actions. The court vacated the temporary injunction effective September 9, 2005. On October 4, 2005, the court granted a motion by McCrothers and Berger to amend their complaints to allege that the ordinances violated their rights to freedom of speech under the First Amendment to the United States Constitution. The parties filed cross-motions for summary judgment. Following a hearing on the motions, the district court dismissed the complaints, ruling that the Mandan ordinances did not violate the free speech rights of McCrothers and Berger and did not result in an unconstitutional taking of their property without just compensation.

II

[¶ 7] Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Leet v. City of Minot, 2006 ND 191, ¶ 12, 721 N.W.2d 398. Whether the district court properly granted summary judgment is a question of law that we review de novo on the record. State ex rel. N.D. Housing Fin. Agency v. Center Mut. Ins. Co., 2006 ND 175, ¶ 8, 720 N.W.2d 425. Summary judgment is appropriate if the issues in the case are such that the resolution of any factual disputes will not alter the result. State ex rel. Stenehjem v. FreeEats.com, Inc., 2006 ND 84, ¶ 4, 712 N.W.2d 828.

[¶ 8] Throughout these proceedings, the parties have maintained that there are no disputed issues of material fact, and the only issues to be resolved are questions of constitutional law.

Ill

[¶ 9] McCrothers and Berger contend that Mandan Ordinance Nos. 961, 963, and 964 violate their First Amendment right to free speech.

A

[¶ 10] Nude or semi-nude dancing is expressive conduct protected by the First Amendment. City of Erie v. Pap’s A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); see also Olson, 305 N.W.2d at 824. Nevertheless, expressive conduct protected by the First Amendment may be regulated. Pap’s A.M., at 289, 120 S.Ct. 1382. In analyzing the constitutionality of laws affecting expressive conduct, the Supreme Court has explained:

To determine what level of scrutiny applies to the ordinance at issue here, we must decide “whether the State’s regulation is related to the suppression of expression.” Texas v. Johnson, 491 U.S. 397, 403, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); see also United States v. O’Brien, 391 U.S. [367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)]. If the governmental purpose in enacting the regulation is unrelated to the suppression of expression, then the regulation need only satisfy the “less stringent” standard from O’Brien for evaluating restrictions on symbolic speech. Texas v. Johnson, supra, at 403, 109 S.Ct. 2533; United States v. O’Brien, supra, at 377, 88 S.Ct. 1673. If the government interest is related to the content of the expression, however, then the regulation falls outside the scope of the O’Bñen test and must be justified under a more demanding standard. Texas v. Johnson, supra, at 403, 109 S.Ct. 2533.

Id. McCrothers and Berger argue the Mandan ordinances should be subject to strict judicial scrutiny because they focus on suppressing the content of speech.

[¶ 11] McCrothers and Berger rely on the Eighth Circuit Court of Appeals’ decision in Avalon Cinema Corp. v. Thompson, 667 F.2d 659 (8th Cir.1981) (en banc), to support their argument. In Avalon, at 660, the plaintiff obtained building permits to construct a movie theatre and bookstore in a commercial-zoned area of North Little Rock, Arkansas, and planned to show sexually-oriented films at the theatre and operate an adult bookstore at the site. On the day the plaintiff obtained a privilege license to operate an adult bookstore, the city council convened a special meeting and enacted an emergency zoning ordinance that prohibited, within 100 yards of a residential area, the exhibition and sale of any film in which certain specified acts were depicted. Id. The plaintiffs theatre was located within 100 yards of a residential area, and the plaintiff challenged the constitutionality of the ordinance on First Amendment grounds. Id. In holding the ordinance unconstitutional, the court stated:

Section 5 of the North Little Rock Ordinance, in part, states:
The City Council has found and determined that the prohibition of certain sexually explicit films in specific areas of the City is immediately necessary and desirable to insure and safeguard the proper development of young people and adults alike within the City of North Little Rock....
This “finding” is little more than a statement that the City Council thinks a certain kind of protected speech is morally objectionable. Such a purpose, however defensible on moral grounds, cannot, under the First Amendment, be the basis for restricting protected speech.

Id. at 661 n. 6. The court relied on a city alderman’s testimony that he hoped the ordinance would keep the theatre from opening, and stressed that the city council enacted the ordinance “only after learning of the imminent opening of the city’s first ‘adult’ movie theatre.” Id. at 661. The court concluded:

In sum, the North Little Rock ordinance is clearly a content-based regulation of protected speech. This is not an obscenity case, and the City does not claim that the ordinance is limited to obscenity. The City’s power to prosecute Avalon if it exhibits an obscene film is not questioned, either by the plaintiff or by this Court. This ordinance would reach a two-hour film, for example, in which one of the enumerated acts or parts of the body is depicted for a few seconds, no matter how much artistic merit or intellectual content the film as a whole might have. Such an enactment cannot, under traditional First Amendment doctrine, be justified as a reasonable regulation of the time, place, and manner of lawful speech. The Supreme Court has quite recently repeated the rule that a “major criterion for a valid time, place, and manner restriction is that the restriction ‘may not be based upon either the content or subject matter of the speech.’ ” Heffron v. International Soc’y for Krishna Consciousness, 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981), quoting Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980).

Id. at 663 (footnotes omitted).

[¶ 12] Avalon is distinguishable from this case. The court noted in Avalon, 667 F.2d at 661, that the city council enacted the zoning ordinance “only after learning of the imminent opening of the city’s first ‘adult’ movie theatre.” The ordinance was hastily enacted and contained only a “brief statement” of the reasons for enacting the legislation. Id. The court further noted that the council’s “actions apparently were not based on any studies by social scientists, or on a demonstrated past history of ‘adult’ theatres’ causing neighborhood deterioration,” which was a critical factor relied upon by the Supreme Court in upholding the challenged ordinances in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). Avalon, at 661. Here, Mandan had adult entertainment establishments for decades before enacting the challenged ordinances. The ordinances were enacted only after public hearings and the enumerated legislative findings of the reasons for enacting the ordinances are extensive and specific.

[¶ 13] Moreover, Avalon was decided before the United States Supreme Court issued its decision in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). In Renton, at 43, 106 S.Ct. 925 the city enacted a zoning ordinance that prohibited adult motion picture theatres from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. In holding there was no First Amendment violation, the Supreme Court stated that the city was entitled to rely on the experience of other cities in enacting its adult theatre zoning ordinance: “The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.” Id. at 51-52, 106 S.Ct. 925. The Supreme Court also rejected the Ninth Circuit Court of Appeals’ view that the ordinance would be invalid if a motivating factor in its enactment was to restrict the exercise of First Amendment rights, “no matter how small a part this motivating factor may have played in the City Council’s decision.” Id. at 47, 106 S.Ct. 925. The Supreme Court said:

This view of the law was rejected in United States v. O’Brien, 391 U.S. at 382-386, 88 S.Ct. 1673 the very case that the Court of Appeals said it was applying:
“It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive....
“... What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork.” Id. at 383-384, 88 S.Ct. 1673.
The District Court’s finding as to “predominate” intent, left undisturbed by the Court of Appeals, is more than adequate to establish that the city’s pursuit of its zoning interests here was unrelated to the suppression of free expression. The ordinance by its terms is designed to prevent crime, protect the city’s retail trade, maintain property values, and generally “protec[t] and pre-serv[e] the quality of [the city’s] neighborhoods, commercial districts, and the quality of urban life,” not to suppress the expression of unpopular views. See App. To Juris. Statement 90a. As JUSTICE POWELL observed in American Mini Theatres, “[i]f [the city] had been concerned with restricting the message purveyed by adult theaters, it would have tried to close them or restrict their number rather than circumscribe their choice as to location.” 427 U.S. at 82, n. 4, 96 S.Ct. 2440.

Id. at 47-48, 106 S.Ct. 925. The Court held that the city’s ordinance was a valid content-neutral time, place, and manner regulation:

In sum, we find that the Renton ordinance represents a valid governmental response to the “admittedly serious problems” created by adult theaters. Renton has not used “the power to zone as a pretext for suppressing expression,” but rather has sought to make some areas available for adult theaters and their patrons, while at the same time preserving the quality of life in the community at large by preventing those theaters from locating in other areas. This, after all, is the essence of zoning. Here, as in American Mini Theatres, the city has enacted a zoning ordinance that meets these goals while also satisfying the dictates of the First Amendment.

Id. at 54-55, 106 S.Ct. 925 (internal citations and footnote omitted). Under the standards announced in Renton, numerous zoning restrictions on adult businesses have withstood First Amendment challenges. See, e.g., C. Crocca, Annot., Validity of Ordinances Restricting Location of “Adult Entertainment’’ or Sex-Oriented Businesses, 10 A.L.R.5th 538 (1993), and cases collected therein.

[¶ 14] McCrothers and Berger rely on an excerpt of a discussion between Man-dan City Commission members after a public hearing concerning their displeasure with the prospect of another adult business establishment locating “in the heart of downtown” as evidence that the ordinances are not content-neutral. According to McCrothers and Berger, this exchange “reveals that the City’s motives in enacting these Ordinances were impermissibly linked to the suppression of expressive conduct.” McCrothers and Berger also point to statements made by persons during the public hearings evidencing their “moral humbuggery” and the Commission’s improper motivation for enacting the ordinances. However, Ordinance No. 963 contains the following findings:

1. Purpose. It is the purpose of this ordinance to regulate adult entertainment establishments in order to promote the health, safety, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects and concentrations of adult entertainment establishments within the City. The provisions of this ordinance have neither the purpose nor effect of imposing a limitation or restriction on the content or reasonable access to any communicative materials, including sexually oriented materials. Similarly, it is neither the intent nor effect of this ordinance to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this ordinance to condone or legitimize the distribution of obscene material.
2. Findings. Based on evidence concerning the adverse secondary effects of adult uses presented in hearings and in reports made available to the Board, and on findings incorporated in the cases of City of Erie v. Pap’s A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440 (1976); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); Thomas v. Chicago Park District, 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002); California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972)[;] City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002); and other cases; and reports of secondary effects occurring in and around adult entertainment establishments, including, but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma County, Oklahoma; Cleveland, Ohio; Dallas, Texas; Tucson, Arizona; St. Croix County, Wisconsin; Bellevue, Washington; Newport News, Virginia; New York, New York; ... and from summaries of several of the foregoing secondary effects reports; and also on findings from the Report of the Attorney General’s Working Group on the Regulation of Sexually Oriented Businesses (June 6, 1989, State of Minnesota), the Board finds:
1. The nature of adult establishments is such that they are recognized as having adverse secondary characteristics, particularly when they are accessible to minors and located near residential property or related residential uses, such as schools, day care centers, libraries, churches or parks.
2. The concentration of adult establishments has an adverse effect upon the use and enjoyment of adjacent areas.
3. The nature of adult establishments requires that they not be allowed within certain zoning districts, or within minimum distances from each other or residential and related residential uses.
4. Regulation of adult establishments is necessary to ensure that the adverse secondary effects would not contribute to or enhance criminal activity in the area of residential uses or contribute to the blighting or downgrading of the surrounding property and lessening of its value.
5. The Mandan Planning & Zoning Commission, following notice thereof, held a public hearing on the proposed ordinance and has considered testimony, written comments, and material from the public by and through said hearing, and has recommended approval of the zoning changes for adult uses.
6. This ordinance is consistent with the Downtown Mandan and Memorial Highway Redevelopment Plan, purposes, goals, and policies:
(1) To establish downtown Mandan as a progressive pedestrian oriented district using Smart Growth initiatives that are responsive to local vernacular design, community values, and adaptable to technological changes.
(2) To improve image and character through investment, beautification, and heritage.
(3) To encourage new mixed-use development (including commercial, residential and educational) to maintain a lively, attractive, and safe place to live, work, and visit.

[¶ 15] Ordinance No. 964 contains additional detailed findings:

A. Adult Entertainment Establishments lend themselves to ancillary unlawful and unhealthy activities that cause deleterious secondary effects in the establishments and in the areas surrounding them. This ordinance is designed to make the owners and operators of these establishments responsible, within constitutional boundaries, for the activities that occur on their premises.
B. Certain employees of unregulated adult entertainment establishments defined in this ordinance as adult cabarets engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments.
C. Sexual acts, including masturbation and oral and anal sex, occur at unregulated adult entertainment establishments, especially those which provide private or semi-private booths or cubicles for viewing films or videos or live sexually oriented shows.
D. Offering and providing such unregulated space encourages unsanitary activities, which create unhealthy conditions.
E. Persons frequent certain adult cabarets, adult arcades, and other adult entertainment establishments for the purpose of engaging in illicit sexual activities within the premises of such adult entertainment establishments, or for the purpose of purchasing or selling illicit drugs.
F. Numerous communicable diseases may be spread by activities occurring in adult entertainment establishments.
G. According to research from the Kaiser Family Foundation, an estimated 650,000 to 900,000 Americans are infected with HIV. The number of new HIV infections occurring each year is now about 41,000. Men and women of all races are most likely to be infected by sexual conduct.
H. The Centers for Disease Control and Prevention estimates that as many as 1 in 3 people with HIV do not know they are infected.
I. The number of cases of early (less than one year) syphilis in the United States reported annually has risen, with 33,613 cases reported in 1982 and 45,200 through November of 1990.
J. The number of cases of gonorrhea in the United States reported annually remains at a high level, with over one-half million cases being reported in 1990.
K. The surgeon general of the United States in his report of October 22, 1986, has advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood and blood components, and from an infected mother to her newborn.
L. According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts.
M. Sanitary conditions in some adult entertainment establishments are unhealthy, in part, because the activities conducted there are unhealthy, and, in part, because of the unregulated nature of the activities and the failure of the owners and the operators of the facilities to self-regulate those activities and maintain those facilities.
N. Numerous studies and reports have determined that semen is found in the areas of adult entertainment establishments where persons view “adult” oriented films and live sexual shows.
O. The findings noted in the paragraphs A through N raise substantial governmental concerns.
P. Adult Entertainment Establishments have operational characteristics that should be reasonably regulated in order to protect those substantial governmental concerns.
Q. A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and the operators of the adult entertainment establishments. Further, such a licensing procedure will give an incentive to the operators to see that the adult entertainment establishment is run in a manner consistent with the health, safety and welfare of its patrons and employees, as well as the citizens of the City. It is appropriate to require reasonable assurances that the licensee is the actual operator of the adult entertainment establishment, in ultimate possession and control of the premises and activities occurring therein.
R. Removal of doors on adult booths, cubicles, or individual viewing areas and requiring sufficient lighting on premises with adult booths advances a substantial governmental interest in curbing the illegal and unsanitary sexual activity occurring in adult establishments.
S. Requiring licensees of adult establishments. to keep information regarding current and certain past employees will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by preventing minors from working in such establishments.
T. The disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of the adult establishment, where such information is substantially related to significant governmental interest in the operation of such uses, will aid in preventing the spread of sexually transmitted diseases.
U. In the prevention of the spread of communicable diseases, it is desirable to obtain a limited amount of information regarding certain employees who may engage in the conduct which this ordinance is designed to prevent, or who are likely to be witnesses to such conduct.
V. The fact that an applicant for an adult use license has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this ordinance.
W. The barring of such individuals from the management of adult uses for a period of years serves as a deterrent to, and prevents conduct which leads to, the transmission of sexually transmitted diseases.
X. The general welfare, health, morals, and safety of the citizens of this City will be promoted by the enactment of this ordinance.

[¶ 16] We recognize that the predominate intent of regulations challenged on First Amendment grounds is generally a finding of fact, see Renton, 475 U.S. at 48, 106 S.Ct. 925, but McCrothers and Berger concede there are no disputed issues of material fact to preclude summary judgment. Although motivating factors for the enactment of the ordinances may have included moral aversion to adult establishments and the prevention of another adult establishment locating on Mandan’s Main Street, the City Commission minutes and the Commissioners’ subsequent findings do not reflect that these were the primary factors. In view of the Commission’s extensive and specific findings and its previous allowance of exotic dancing on Main Street, we are satisfied that the predominating factor in enacting the zoning ordinances was the negative secondary effects of the adult establishments on Main Street and their increasing number, rather than an intention to restrict the First Amendment rights of McCrothers and Berger. See, e.g., Stringfellow’s of New York, Ltd. v. City of New York, 91 N.Y.2d 382, 671 N.Y.S.2d 406, 694 N.E.2d 407, 416 (1998) (“courts will not ‘invalidate a municipal zoning ordinance simply because one or more legislators sought to suppress protected expression.... [I]t is the motive of the Legislature, not individual legislators, that is controlling’ ”) (internal citations omitted). We conclude that the ordinances are content-neutral time, place, and manner regulations, and that strict scrutiny analysis is not required.

B

[¶ 17] In Olson, 305 N.W.2d at 823 n. 1, this Court upheld the constitutionality of West Fargo’s cabaret ordinance, which similarly banned “topless and go-go dancing” in licensed liquor establishments. Olson, at 824-27, relied extensively on the United States Supreme Court’s decision in California v. LaRue, 409 U.S. 109, 118-19, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), which held that the conclusion embodied in a statute prohibiting nude dancing where liquor was sold “was not an irrational one,” and “[g]iven the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires,” the challenged regulations passed constitutional muster. However, in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 515-16, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996), the Supreme Court disavowed LaRue’s reliance on the Twenty-first Amendment, but otherwise upheld the precedential value of the case because “the Court’s analysis in LaRue would have led to precisely the same result if it had placed no reliance on the Twenty-first Amendment.” Since then, courts have “struggled in deciding whether adult entertainment liquor regulations should fall under the analytical framework of zoning regulations or public indecency regulations” and have devised various tests to analyze their constitutionality. Giovani Carandola, Ltd. v. Fox, 396 F.Supp.2d 630, 638 (M.D.N.C.2005), aff'd in part, rev’d in part, and vacated in part on other grounds, 470 F.3d 1074 (4th Cir.2006).

[¶ 18] The Seventh Circuit Court of Appeals’ test, based upon O’Brien and its progeny, is inclusive, logical, and persuasive, and we apply it to analyze the constitutionality of an ordinance that restricts the combination of alcohol and nude or semi-nude dancing:

[W]e conclude that a liquor regulation prohibiting the sale or consumption of alcohol on the premises of adult entertainment establishments is constitutional if: (1) the State is regulating pursuant to a legitimate governmental power; (2) the regulation does not completely prohibit adult entertainment; (3) the regulation is aimed not at the suppression of expression, but rather at combating the negative secondary effects caused by adult entertainment establishments; and (4) the regulation is designed to serve a substantial government interest, narrowly tailored, and reasonable alternative avenues of communication remain available; or, alternatively, the regulation furthers an important or substantial government interest and the restriction on expressive conduct is no greater than is essential in furtherance of that interest.

Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702, 722 (7th Cir.2003) (internal citations and footnote omitted); compare State v. Niska, 380 N.W.2d 646, 649 (N.D.1986) (under O’Brien, government regulation which only incidentally restricts speech is valid if “[t]he regulation is within the constitutional power of the state”; “[i]t furthers an important or substantial governmental interest”; “[t]he governmental interest is unrelated to the suppression of free expression”; “[t]he incidental restriction on alleged first amendment freedoms is no greater than is essential to the furtherance of that interest”).

[¶ 19] McCrothers and Berger do not dispute that the ordinances satisfy the first prong of the test. The United States Supreme Court observed in 44 Liquormart, Inc., 517 U.S. at 515, 116 S.Ct. 1495 that, “[e]ntirely apart from the Twenty-first Amendment, the State has ample power to prohibit the sale of alcoholic beverages in inappropriate locations” through its inherent police powers. The Supreme Court, as well as this Court, have long recognized the power of the State and the cities within it to regulate circumstances involving the public welfare, including the use of “land-use regulation in an effort to maintain order with respect to the quality of life as cities grow.” City of Minot v. Central Ave. News, Inc., 308 N.W.2d 851, 858 (N.D.1981); see also Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Olson, 305 N.W.2d at 823; N.D.C.C. § 40-05-01(29) (municipalities have the power to “regulate the use and to regulate and license the sale of alcoholic beverages”); N.D.C.C. § 40-47-01 (cities may zone “[f]or the purpose of promoting health, safety, morals, or the general welfare of the community”); N.D.C.C. § 5-02-09 (a local governing body by ordinance “may regulate or restrict the operation of [alcoholic beverage] licensees, including ... regulation of dancing or various forms of entertainment on the premises”). Mandan is regulating under a legitimate governmental power.

[¶ 20] The second prong of the test is satisfied because the challenged Mandan ordinances do not completely eliminate adult entertainment. Adult entertainment is permitted in licensed establishments that do not serve alcohol and are located within particular-zoned areas within the city. MeCrothers and Berger argue that the ordinances have effectively eliminated exotic dancing in Mandan, not because the city has failed to allow businesses offering exotic dancing sufficient alternative amounts of property within which to locate, but because no businesses have chosen to offer exotic dancing in those zoned areas since the ordinances have been in effect. The absence of establishments offering exotic dancing under the circumstances permitted by the ordinances could be the result of numerous business-related factors, but we do not view this fact as constitutionally significant. As the court stated in Colacurcio v. City of Kent, 163 F.3d 545, 557 (9th Cir.1998):

The test for determining whether an adult business’ First Amendment rights are threatened is whether [ ] the government has “effectively denfied]” the business “a reasonable opportunity to open and operate” within the city or area in question. Renton, 475 U.S. at 54, 106 S.Ct. 925, 89 L.Ed.2d 29. We elaborated on this test in Spokane Arcade, Inc. v. City of Spokane, 75 F.3d 663 (9th Cir.1996). The test is whether a business could operate under the regulations at issue, not whether a particular business will be able to compete successfully within the market. Id. at 666. “[I]n the absence of any absolute bar to the market ... it is irrelevant whether ‘[a regulation] will result in lost profits, higher overhead costs, or even prove to be commercially unfeasible for an adult business’ ”. Id. (quoting Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1531 (9th Cir.1993)).

See also Lakeland Lounge of Jackson, Inc. v. City of Jackson, 973 F.2d 1255, 1260 (5th Cir.1992) (“The fact that these locations do not seem particularly desirable for economic reasons does not matter”); Function Junction, Inc. v. City of Daytona Beach, 705 F.Supp. 544, 552 (M.D.Fla.1987) (all the First Amendment requires “ ‘is that “speech,” “expression,” and “ideas” be allowed a physically adequate forum’ ”) (internal citation omitted). The Mandan ordinances allow exotic dancing in various zoned areas in the city, albeit not in establishments that serve alcoholic beverages. The First Amendment does not entitle an alcoholic beverage establishment, its dancers, or its patrons, to have alcohol available during a presentation of nude or semi-nude dancing. See, e.g., Ben’s Bar, Inc., 316 F.3d at 726; Gary v. City of Warner Robins, 311 F.3d 1334, 1340 (11th Cir.2002); Sammy’s of Mobile, Ltd. v. City of Mobile, 140 F.3d 993, 999 (11th Cir.1998); Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. of California, 99 Cal.App.4th 880, 121 Cal.Rptr.2d 729, 741 (2002); cf. Olson, 305 N.W.2d 821.

[¶ 21] We have already addressed the third prong of the test and concluded that the ordinances are aimed at combating the negative secondary effects caused by adult entertainment establishments rather than at the suppression of expression. The fourth prong requires an examination of whether the ordinances are designed to serve a substantial government interest, and whether the restriction on expressive conduct is no greater than is essential in furtherance of that interest.

[¶ 22] The Supreme Court has recognized that a city’s interest in curbing the secondary effects associated with adult entertainment establishments is substantial. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 435, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (“reducing crime is a substantial government interest”); Renton, 475 U.S. at 50, 106 S.Ct. 925 (“Exactly the same vital governmental interests are at stake here”); American Mini Theatres, 427 U.S. at 71, 96 S.Ct. 2440 (“the city’s interest in attempting to preserve the quality of urban life is one that must be accorded high respect”). McCrothers and Berger do not assert that the city’s interest is insubstantial, but essentially argue that the city has failed to show that the ordinances actually serve that government interest. See Renton, 475 U.S. at 51-52, 106 S.Ct. 925 (city need not “conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses ”) (emphasis added).

[¶23] In Alameda Books, Inc., 535 U.S. at 433, 122 S.Ct. 1728, the Supreme Court granted certiorari “to clarify the standard for determining whether an ordinance serves a substantial government interest under Renton.” The plurality in Alameda Books, Inc., at 438, 122 S.Ct. 1728 refused to “require that the city provide evidence that not only supports the claim that its ordinance serves an important government interest, but also does not provide support for any other approach to serve that interest.” The Court said:

In Renton, we specifically refused to set such a high bar for municipalities that want to address merely the secondary effects of protected speech. We held 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. 475 U.S., at 51-52, 106 S.Ct. 925; see also, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 584, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (SOUTER, J., concurring in judgment) (permitting municipality to use evidence that adult theaters are correlated with harmful secondary effects to support its claim that nude dancing is likely to produce the same effects). 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. See, e.g., Erie v. Pap’s A.M., 529 U.S. 277, 298, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (plurality opinion).

Id. at 438-39, 122 S.Ct. 1728.

[¶ 24] McCrothers and Berger rely on numerous comments made by proponents of the ordinances during the public hearings for the proposition that the ordinances do not actually serve a government interest. For example, a concern was expressed that “[p]ersons who live in apartments in the downtown area, or in single family residences nearby, are bothered by the loud noise of the strip clubs and are afraid to walk on the sidewalks because the customers from the bars are bar hopping in groups.” McCrothers and Berger contend this statement is “specious” because there are a number of bars and clubs offering live music in downtown Mandan and eliminating exotic dancing will not discourage bar hopping. Other comments were that “[a] testimonial by a former strip club dancer ... stated that dancing was just a front for prostitution,” and that “many of the dancers employed by the bars come from Chicago, Milwaukee, and Minneapolis.” According to McCrothers and Berger, these comments are irrelevant because their businesses were not “strip clubs” and “there is no way to discern where this person gleaned his or her information,” and because the city should not “revil[e] those who seek gainful employment simply because they come from urban areas.” Other comments reflected concern that the adult establishments gave an adverse image of Mandan to visitors and the city “needs to require current property owners to clean up, paint, repair and maintain their property on Main Street.” This comment is irrelevant, according to McCrothers and Berger, because general concerns of disrepair should be levied “against the whole of downtown.” McCrothers and Berger describe as “fear-mongering” the police chiefs “background checks on dancers who had performed in Mandan in the last several months, which showed that 38% of the dancers had convictions for prostitution, drug offenses, fraud, assault, and other crimes.”

[¶ 25] We do not believe the complaints leveled by McCrothers and Berger east direct doubt on the city’s rationale for enacting the ordinances. They constitute mere differences of opinion on whether the city’s concerns will be addressed by enactment of the ordinances. A “city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.” American Mini Theatres, 427 U.S. at 71, 96 S.Ct. 2440.

[¶ 26] A plaintiff may also furnish evidence that disputes the city’s factual findings to show that a challenged ordinance does not serve a substantial government interest. See Alameda Books, Inc., 535 U.S. at 439, 122 S.Ct. 1728. McCrothers and Berger rely upon an article criticizing the methodology of many of the secondary effects studies conducted by other communities that were mentioned and incorporated by the city of Mandan in its findings. See B. Paul, D. Linz, B. Shafer, Government Regulation of “Adult” Businesses Through Zoning and Anti-Nudity Ordinances: Debunking the Legal Myth of Negative Secondary Effects, 6 Comm. L. & Pol. 355 (2001). We agree with the courts that have refused invitations to overturn ordinances based on the findings in this article, because “[g]eneral commentary criticizing adverse secondary effect studies is not enough to cast ‘direct doubt’ on the city’s rationale for the ordinance.” City of Elko v. Abed, 677 N.W.2d 455, 465 (Minn.App.2004); see also SOB, Inc. v. County of Benton, 317 F.3d 856, 863-64 (8th Cir.2003). Although the arguments of McCrothers and Berger may, at best, raise factual issues, we again note they do not contend that summary judgment is inappropriate. We conclude the Mandan ordinances serve a substantial government interest.

[¶ 27] McCrothers and Berger argue the ordinances are facially over-broad, and consequently, the restriction on expressive conduct is not narrowly tailored and is greater than is essential to further the government interest. “Overly broad statutes are those that restrict constitutionally protected expression as well as expression that is unprotected.” Kraimer v. City of Schofield, 342 F.Supp.2d 807, 814 (W.D.Wis.2004). “State action can be challenged on overbreadth grounds for its potential to chill or infringe free speech even though the challenger’s rights may not have been violated under the circumstances.” Bolinske v. North Dakota State Fair Ass’n, 522 N.W.2d 426, 429-30 (N.D.1994); see also State v. Tibor, 373 N.W.2d 877, 881 (N.D.1985). The overbreadth “doctrine permits ‘an individual whose own speech or conduct may be prohibited ... to challenge a statute on its face because it also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so.’ ” SOB, Inc., 317 F.3d at 864 (quoting Ways v. City of Lincoln, 274 F.3d 514, 518 (8th Cir.2001)). In Broadñck v. Oklahoma, 413 U.S. 601, 613, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), the Supreme Court said invalidation of legislation under the overbreadth doctrine is “manifestly, strong medicine” which should be used “sparingly and only as a last resort,” and that “the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” See also Osborne v. Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990); compare United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985) (validity of time, place, and manner regulations “does not turn on a judge’s agreement with the responsible decision-maker concerning the most appropriate method for promoting significant government interests,” nor are they “invalid simply because there is some imaginable alternative that might be less burdensome on speech”).

[¶ 28] McCrothers and Berger argue Ordinance No. 961 is overbroad because it prohibits “more than just exotic dancing” and would “outlaw the performances of cheerleaders at sporting events where alcohol is served” as well as “the performance of a dance troupe.” According to McCrothers and Berger, Ordinance No. 961 also regulates too many businesses by including restaurants and hotels where “[t]ime-honored customs, such as wedding reception garter auctions” and “[b]achelor and bachelorette parties” would be forbidden. We are not persuaded by this argument. Ordinance No. 961 prohibits “live performances” in alcoholic beverage licensed premises, and “live performances” are defined as “any person who for consideration, monetary or otherwise, performs in person.” Mandan Code of Ordinances § 12 — 01—18(1)(b) (emphasis added). As this Court stated in rejecting an over-breadth argument against similar ordinances in Olson, 305 N.W.2d at 826, “the prohibition under attack is confined strictly to the four walls of the barroom and focuses only on persons dancing for consideration.” We conclude these features of the ordinances are not constitutionally overbroad.

[¶ 29] McCrothers and Berger also challenge as overbroad the disclosure requirements contained in the ordinances. Ordinance No. 964 created Mandan Code of Ordinances § 13-02.1-04(1)(A)(5), which requires applications for an adult cabaret license to include:

For the applicant and all applicant control persons, any and all criminal convictions or forfeitures within five (5) years immediately preceding the date of the application, other than parking offenses or minor traffic infractions including the dates of conviction, nature of the crime, name and location of court and disposition.

[¶ 30] In City of Minot v. Central Ave. News, Inc., 308 N.W.2d 851, 863 (N.D.1981), this Court addressed the constitutionality of an ordinance requiring owners and managers of adult entertainment centers to furnish to the chief of police “their fingerprints and ‘prior criminal records, if any.’ ” In holding this provision was constitutionally overbroad, we said:

Arguably, law-enforcement agencies would be aided in their surveillance and enforcement activities regarding adult entertainment centers if they knew, for instance, which owners or managers of such businesses had been convicted for crimes related to obscenity. However, there clearly are some types of criminal convictions which in no way can be associated with the operation of a business in general or to adult entertainment centers in particular. In this respect we believe that the requirement of disclosing prior criminal records goes too far. A more narrowly drawn criminal-record-disclosure requirement focusing on particular crimes which are reasonably related to the governmental interest involved herein might survive constitutional scrutiny.

Id.

[¶ 31] Although the disclosure requirement in the Mandan ordinance contains some of the same features as the City of Minot ordinance, we believe the Mandan ordinance is distinguishable. Unlike the Minot ordinance, the disclosure of criminal records required by the Mandan ordinance is limited to a period of five years immediately preceding the date of application. Furthermore, the Commission’s findings in this case are much more extensive and specific than those accompanying the Minot ordinance. See City of Minot, 308 N.W.2d at 855 n. 1. The Commission’s detailed findings on the adverse secondary effects of adult establishments support a broad disclosure requirement beyond obscenity-related criminal offenses. Knowledge of an applicant’s conviction of crimes not directly related to obscenity would be relevant in the City’s attempt to combat those documented adverse secondary effects. Moreover, since this Court issued its decision in City of Minot more than 25 years ago, criminal background checks have become very common. See, e.g., N.D.C.C. §§ 4-41-02(1); 5-02-02(8); 12-60-24(1); 15.1-13-14; 15.1-13-23; 43-30-02.1; 50-11-02.4; 50-11-06.8; 50-11.3-01; 50-12-03.2; 54-12-20(6). It may be arguable that the constitutional overbreadth holding in City of Minot is no longer viable, but we need not decide the issue. We conclude that the disclosure requirement in the Mandan ordinance is not constitutionally overbroad, and that the ordinances, as a whole, are narrowly tailored and do not restrict expressive conduct any greater than is essential in furtherance of the government interest.

[¶ 32] We conclude the First Amendment free speech rights of McCrothers and Berger have not been violated by Mandan Ordinances Nos. 961, 963, and 964.

IV

[¶ 33] McCrothers and Berger argue that they are entitled to compensation for the property interests they held in downtown Mandan “which were unconstitutionally taken” after the city passed the ordinances. To support their claim, McCrothers submitted evidence that the Tree City Bar’s revenues decreased from $66,809 for a four-month period before the ordinances became effective to $21,066 for the same four-month period after the ordinances became effective, and Berger submitted evidence that the Silver Dollar Bar’s revenues decreased from $142,080 to $68,872 during the same time periods.

[¶ 34] Whether there has been a taking of private property for public use is a question of law which is fully reviewable on appeal. Wild Rice River Estates, Inc. v. City of Fargo, 2005 ND 193, ¶ 10, 705 N.W.2d 850; Braunagel v. City of Devils Lake, 2001 ND 118, ¶ 16, 629 N.W.2d 567. Because the Mandan ordinances did not constitute a physical taking of property or deprive the bar owners of all economically beneficial use of their property, this takings claim is governed by the standards set forth in Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978). See Wild Rice River Estates, Inc., at ¶ 13.

These standards are “designed to allow ‘careful examination and weighing of all the relevant circumstances.’ ” The primary Penn Central factors are “ ‘[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations,’ ” and the “ ‘character of the governmental action’' — for instance whether it amounts to a physical invasion or instead merely affects property interests through ‘some public program adjusting the benefits and burdens of economic life to promote the common good.’” The Penn Central inquiry turns in large part, albeit not exclusively, upon the magnitude of a regulation’s economic impact and the degree to which it interferes with legitimate property interests.

Id. (internal citations omitted).

[¶ 35] The Mandan ordinances advance not only a legitimate government interest, but a substantial interest under the First Amendment, and affect property interests to promote the common good. Considering the lengthy history of zoning restrictions on adult entertainment establishments in this State and others, any investment-backed expectations held by McCrothers and Berger were neither legitimate nor reasonable. Furthermore, the economic impact of the ordinances on McCrothers and Berger is not appreciable in a constitutional sense. See Colacurcio, 163 F.3d at 557. McCrothers and Berger cannot claim that the ordinances have deprived them of all economically viable use of their property. The ordinances merely prohibit McCrothers and Berger from offering exotic dancing in an establishment that serves alcohol. They may continue to operate bars in their present location, relocate and offer adult entertainment without an alcoholic beverage license, or convert their businesses to unregulated enterprises. As we have concluded, they have no constitutional right to offer exotic dancing in a bar. The ordinances have not caused actual interference with their right to operate businesses. We conclude, like the other courts which have addressed the question under similar circumstances, that McCrothers and Berger did not suffer an unconstitutional taking of property without just compensation. See, e.g., SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1278 (5th Cir.1988); P.M. Realty & Invs., Inc. v. City of Tampa, 779 So.2d 404, 408-09 (Fla.App.2000); Dandy Co., Inc. v. Civil City of South Bend, County-City Complex, 401 N.E.2d 1380, 1386 (Ind.App.1980); DiRaimo v. City of Providence, 714 A.2d 554, 564 (R.I.1998); Greenville County v. Kenwood Enters., Inc., 353 S.C. 157, 577 S.E.2d 428, 437-38 (2003), overruled on other grounds, Byrd v. City of Hartsville, 365 S.C. 650, 620 S.E.2d 76, 81 n. 11 (2005); MJR’s Fare of Dallas, Inc. v. City of Dallas, 792 S.W.2d 569, 574-75 (Tex.App.1990); Lindsay v. Papageorgiou, 751 S.W.2d 544, 550-51 (Tex.App.1988).

V

[¶ 36] McCrothers and Berger have attempted to challenge the Mandan ordinances under the free speech provision of the state constitution, see N.D. Const, art. I, § 4, and to assert a takings claim under the state constitution. See N.D. Const, art. I, § 16. McCrothers and Berger have not marshaled any arguments explaining why the results we have reached under the federal constitution are not warranted under the provisions of the state constitution. We therefore decline to address the state constitutional issues. See, e.g., State v. Parizek, 2004 ND 78, ¶ 24, 678 N.W.2d 154; City of Mandan v. Fern, 501 N.W.2d 739, 744 n. 3 (N.D.1993); Lund v. North Dakota State Highway Dep’t, 403 N.W.2d 25, 29 n. 6 (N.D.1987).

VI

[¶ 37] The summary judgment is affirmed.

[¶ 38] DALE V. SANDSTROM, DANIEL J. CROTHERS, MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ., concur.