Stringfellow's of New York, Ltd. v. City of New York

• Decision Date: 23 October 1996
• Citation: 653 N.Y.S.2d 801,171 Misc.2d 376
• Parties: STRINGFELLOW'S OF NEW YORK, LTD., Plaintiff, v. CITY OF NEW YORK et al., Defendants, and Times Square Business Improvement District et al., Intervenors-Defendants. AMSTERDAM VIDEO INC. et al., Plaintiffs, v. CITY OF NEW YORK et al., Defendants, and Times Square Business Improvement District et al., Intervenors-Defendants. Rachel HICKERSON et al., Plaintiffs, v. CITY OF NEW YORK et al., Defendants, and Times Square Business Improvement District et al., Intervenors-Defendants.
• Court: New York Supreme Court

Page 801

653 N.Y.S.2d 801

171 Misc.2d 376

STRINGFELLOW'S OF NEW YORK, LTD., Plaintiff, v. CITY OF NEW YORK et al., Defendants, and Times Square Business Improvement District et al.,

Intervenors-Defendants.

AMSTERDAM VIDEO INC. et al., Plaintiffs, v. CITY OF NEW YORK et al., Defendants, and Times Square Business Improvement District et al.,

Intervenors-Defendants.

Rachel HICKERSON et al., Plaintiffs, v. CITY OF NEW YORK et al., Defendants, and Times Square Business Improvement District et al.,

Intervenors-Defendants.

Supreme Court New York County.

Oct. 23, 1996.

Mark J. Alonso, P.C., New York City, for Stringfellow's of New York, Ltd., plaintiff.

Lipsitz, Green, Fahringer, Roll, Dalisbury & Cambria, L.L.P., New York City (Herald Price Fahringer and Erica T. Dubno, of counsel), for Amsterdam Video Inc. and others, plaintiffs.

New York Civil Liberties Union Foundation, New York City (Beth Haroules, of counsel), for Rachel Hickerson and others, plaintiffs.

Paul A. Crotty, Corporation Counsel of New York City (Albert Fredericks, of counsel), for City of New York and others, defendants.

Cravath, Swaine & Moore, New York City (Frederick A.O. Schwarz, Jr., and David A. Stoll, of counsel), for Times Square Business Improvement District, intervenor-defendant.

Dewey Ballantine, New York City (Wayne A. Cross, Heather K. McDevitt and Nancy Z. Shifren, of counsel), for American Alliance for Rights and Responsibilities, intervenor-defendant.

MARYLIN G. DIAMOND, Justice.

The issue raised by these three related actions is whether the City of New York in its attempt to disperse the present concentration of x-rated businesses in certain areas of the City has violated plaintiffs' rights of freedom of expression guaranteed under the New York State Constitution.

Plaintiff in Stringfellow's of New York, Ltd. v. The City of New York ("Stringfellow's ") is an adult entertainment establishment that features topless female dancers. Plaintiffs in Rachel Hickerson, et al. v. City of New York ("Hickerson ") are Manhattan and Bronx residents who allege they regularly patronize adult entertainment establishments located throughout the City of New York. Plaintiffs in Amsterdam Video, Inc., et al. v. The City of New York ("Amsterdam Video ") are approximately 92 owners and operators of adult establishments. Plaintiffs, in these actions consolidated for the disposition of the underlying motions for summary judgment, seek to have this court declare unconstitutional the Text Amendment N 950384 ZRY to the zoning resolution of the City of New York (the "Amended Zoning Resolution") on the ground that it unconstitutionally violates their freedom of expression guaranteed under this State's Constitution (N.Y. Const., art. I, § 8).

Prior Proceedings

The Amsterdam Video and Hickerson actions were removed from state court to the United States District Court for the Southern District of New York. The District Court then remanded that portion of the claims arising under the New York State Constitution, holding in abeyance the claims in both actions predicated on the Federal Constitution. The Stringfellow's action was commenced in state court.

Upon remand, this court granted Times Square Business Improvement District ("TSBID") and the American Alliance for Rights and Responsibilities ("AARR") motion to intervene as permissive intervenors. The Appellate Division, First Department, denied Amsterdam Video 's, Hickerson 's and Stringfellow's motions for a stay and an expedited appeal of that decision.

Background

As of 1965, 9 adult entertainment establishments existed in the City of New York. By 1976, the number of such establishments increased to 151. Between 1976 and 1984, the number of adult entertainment establishments declined 13%, from 151 to 131 citywide. In Midtown Manhattan alone, the number of adult uses declined by 48, from 97 to 49. The overall decline was offset by an increase of 28 adult establishments, from 30 to 58 establishments, in the City's other four boroughs. Between 1984 and 1993, there was a 35% increase to 177; 107 in Manhattan, 44 in Queens, 15 in Brooklyn, 8 in the Bronx, and 3 in Staten Island.

In response to community concerns regarding the increase in adult establishments and their allegedly adverse impacts upon those communities, the New York City Department of City Planning ("DCP") undertook a study in late 1993 (the "DCP Study") to determine the nature and extent of the impact that adult establishments have on communities and to assist the New York City Planning Commission (the "Planning Commission") in determining whether to amend the City's zoning resolution so as to specifically regulate adult entertainment establishments.

As part of its study, DCP selected seven areas where adult uses are located: Manhattan Community Districts 4, 5, and 7; Bronx Community District 5; Brooklyn Community District 7; Queens Community District 2; and Staten Island Community District 2. DCP did not study the Times Square area because that area was already under study by TSBID (the "TSBID Study"). DCP also surveyed representatives from community boards, local organizations and businesses, the adult entertainment industry, as well as real estate brokers, and police and sanitation officers in order to compile information concerning the impact of adult entertainment establishments on land use, street conditions property values, and crime. In addition, the DCP Study considered local studies and surveys such as the Chelsea Business Survey and the TSBID Study. The DCP Study also included a survey and review of adult entertainment studies conducted by other cities such as Islip, New York; Los Angeles, California; Indianapolis, Indiana; Whittier, California; Austin, Texas; Phoenix, Arizona; Manatee County, Florida; New Hanover County, North Carolina; and the State of Minnesota. Also considered were the impacts identified by the City Planning Commission's 1977 Report, the 1983 Annual Report of the Mayor's Office of Midtown Enforcement, and the 1993 Task Force on the Regulation of Sex-Related Businesses.

The DCP Study concluded that the number of adult uses citywide has increased substantially in recent years, that a majority of the adult entertainment establishments are located in zoning districts that permit residential developments, and that such establishments as they proliferate tend to concentrate in certain neighborhoods. For example, in Manhattan, adult establishments have clustered in central locations such as Times Square. In the outer boroughs, these establishments have concentrated along major arteries, such as Queens Boulevard in Queens and Third Avenue in Brooklyn. The DCP concluded that the presence of adult entertainment establishments, particularly those that are concentrated in a specific area, tends to produce negative secondary effects such as increased crime, decreased property values, and reduced shopping and commercial activities. Accordingly, the DCP recommended to the Planning Commission that the zoning resolution be amended so as to regulate adult entertainment establishments more closely than other commercial uses by placing restrictions on the proximity of adult uses to residential areas, schools, houses of worship, and other adult establishments. Prior to this recommendation, the City's zoning resolution had made no distinction between adult entertainment establishments and other commercial activities.

Pending enactment of amendments to the zoning resolution, the Planning Commission approved and the New York City Council adopted an interim amendment to the zoning resolution which imposed a one year moratorium on new or expanded adult entertainment establishments. During the moratorium, no new adult entertainment establishments were allowed and no existing establishment could be enlarged or extended for a period of one year from its effective date of November 24, 1994. The moratorium applied to stores featuring adult books, magazines, videotapes, topless or nude bars and adult theaters featuring films, videotapes, or live sex shows.

On March 21, 1995, the DCP and the New York City Council Land Use Committee filed a joint application to amend the zoning resolution by proposing permanent regulations that would place restrictions on the location, size and signage of specified types of adult establishments. The objective of the proposed amendments to the zoning resolution would be to break the concentration of adult entertainment establishments in certain neighborhoods by dispersing such businesses to certain permissible zoned districts. Following extended public hearings, comments and recommendations on the proposed regulations, the City Council approved the Amended Zoning Resolution on October 25, 1995, effective on that date.

The Amended Zoning Resolution

The centerpiece of the Amended Zoning Resolution is a set of locational restrictions and anti-concentration provisions that are designed to shield the City's residential neighborhoods, and the facilities and commercial areas that serve them, from the negative impacts produced by adult uses. Even before the regulations were adopted, the general regulatory scheme embodied in the zoning resolution prohibited new commercial development in the City's residentially zoned districts. Under the Amended Zoning Resolution, adult uses are also barred from certain districts that are zoned for commercial and manufacturing uses, but, in addition, permit new residential development (Amended Zoning Resolution §§ 32-01(a) and 42-01(a)). Many of these districts are mapped within residential districts and contain the local retail strips that serve the everyday commercial needs of the surrounding residential neighborhoods. Adult uses continue to be allowed, subject to certain restrictions, in a number of commercial and manufacturing districts that are mapped throughout the City and in which a variety of retail, entertainment and other commercial uses are permissible (...