598 F.3d 17 (2nd Cir. 2010), 08-2789-cv, TJS of New York, Inc. v. Town of Smithtown

Docket Nº:08-2789-cv.
Citation:598 F.3d 17
Opinion Judge:CALABRESI, Circuit Judge:
Party Name:TJS OF NEW YORK, INC., a New York Corporation, Plaintiff-Appellant, v. TOWN OF SMITHTOWN, a New York Municipal Corporation, Defendant-Appellee.
Attorney:Richard L. Wilson (Howard E. Greenberg, on the brief) Smithtown, N.Y., for Plaintiff-Appellant. Kenneth M. Seidell, Smithtown, N.Y., for Defendant-Appellee.
Judge Panel:Before WINTER, CALABRESI, and SACK, Circuit Judges.
Case Date:March 10, 2010
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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598 F.3d 17 (2nd Cir. 2010)

TJS OF NEW YORK, INC., a New York Corporation, Plaintiff-Appellant,


TOWN OF SMITHTOWN, a New York Municipal Corporation, Defendant-Appellee.

No. 08-2789-cv.

United States Court of Appeals, Second Circuit.

March 10, 2010

Argued: June 4, 2009.

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Richard L. Wilson (Howard E. Greenberg, on the brief) Smithtown, N.Y., for Plaintiff-Appellant.

Kenneth M. Seidell, Smithtown, N.Y., for Defendant-Appellee.

Before WINTER, CALABRESI, and SACK, Circuit Judges.

CALABRESI, Circuit Judge:

This case requires us to resolve an interesting and surprisingly unanswered question of First Amendment law: whether the

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constitutionality of a zoning ordinance should only be evaluated with regard to the " alternative avenues of communication" it leaves open at the time it is passed, or also those it leaves open at the time it is challenged. Plaintiff-Appellant TJS of New York, Inc. (" TJS" ) brought a First Amendment challenge to a zoning ordinance enacted by Defendant-Appellee Town of Smithtown, seeking an injunction and declaratory judgment to the effect that the ordinance did not give TJS adequate alternative sites on which to locate its adult entertainment business. The United States District Court for the Eastern District of New York (Feuerstein, J. ) denied the request for declaratory judgment and a permanent injunction, upholding the ordinance on the ground that adequate alternative sites existed at the time the ordinance was passed. See TJS of New York, Inc. v. Town of Smithtown, No. 03-CV-4407, 2008 WL 2079044 (E.D.N.Y. May 13, 2008) (" TJS " ). We hold that the First Amendment requires courts to consider the adequacy of alternative sites available when the ordinance is challenged. We therefore vacate and remand for further proceedings. We reject, however, TJS's argument that the District Court applied legally erroneous standards in determining whether a site was available for adult entertainment establishments, and we emphasize that nothing in our decision alters the fact that municipalities have broad constitutional power to limit adult entertainment uses.

I. Facts

In 1994, Smithtown enacted a zoning ordinance limiting any new " adult entertainment" uses 1 to three kinds of zoning districts: shopping center business (" SCB" ), light industry (" LI" ) and heavy industrial (" HI" ). The same ordinance created an amortization schedule providing that any existing adult entertainment uses located in zones other than SCB, LI, and HI would become nonconforming uses after January 1, 1998. In addition to these general zoning restrictions, the ordinance also required that adult entertainment uses be located at least 500 feet from each other and from any " residence district, park, playground, school, church or similar place of public assembly." Chapter 322-30.2.

490 West Jericho Turnpike in Smithtown has been in use as an adult entertainment site since 1979, under various owners. It is located less than 500 feet from three different parks, and it is also located in a neighborhood business (" NB" ) zone. Accordingly, it became a nonconforming use under the 1994 ordinance.

At the time the ordinance was passed, the adult entertainment site at 490 West Jericho Turnpike was owned by 490 Habitat, Inc. (" Habitat" ). In July 1999, Habitat filed a lawsuit challenging the Town's zoning ordinance, arguing, inter alia, that the ordinance violated the First Amendment because it did not provide a reasonable number of locations for new adult entertainment businesses to open and operate in Smithtown. As the case proceeded to trial, the District Court ordered the Town to compile a list of alternative locations at which an adult entertainment use could to be located. The Town did so, coming up with 35 sites.

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On May 30, 2000, while Habitat's challenge was pending, Smithtown amended the relevant code by requiring the 500-foot minimum spacing to be measured building-to-building rather than property line-to-property line, and by removing a special exception requirement that Habitat had argued was an unconstitutional prior restraint. Soon afterward, Habitat and the Town ended their litigation pursuant to a stipulation in which Habitat agreed to make a " diligent good faith effort" to relocate, but was permitted to continue operating at 490 West Jericho Turnpike until September 1, 2003.

In 2002, however, Habitat sold the site to TJS, which used it as an adult entertainment establishment called " The Oasis." In June 2003, the Town moved for an order of closure, and TJS responded by seeking a declaratory judgment and permanent injunction against enforcement of the ordinance. The case proceeded to a six-day bench trial before Judge Feuerstein in the United States District Court for the Eastern District of New York. At trial, experts testified for both the Town and TJS as to whether the ordinance preserved adequate alternative locations for adult entertainment uses, as required by the First Amendment.

In addition to disputing whether certain sites were in fact " available," the parties disagreed strongly about what time period was relevant to the inquiry. The Town argued that the only relevant question was whether adequate alternative locations existed at the time the ordinance was passed. TJS, however, argued that the constitutionality of the ordinance should be evaluated with regard to the adequacy of alternative sites available at the time the complaint was filed.2 The District Court concluded that TJS was " incorrect. It is a municipality's burden to pass a constitutional ordinance which, in order to be constitutional, must provide sufficient alternative avenues of expression on the date of enactment. " TJS, 2008 WL 2079044, at *6 (emphasis added). The court then proceeded to evaluate the sites available on that date, found them to be adequate,3 and denied TJS's request for a declaratory judgment and permanent injunction. Id. at *20. TJS timely appealed.

II. Adult Entertainment, Zoning, and the First Amendment

Over the past few decades, adult entertainment establishments have played a disproportionately prominent role in First Amendment doctrine. Adult entertainment, unlike obscenity, see generally

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Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), has been held by the Supreme Court to be protected by the First Amendment. And yet the High Court has often treated adult entertainment establishments and the activities they support as different from " core" First Amendment speech. Most notably, the Court has upheld adult entertainment zoning restrictions that would almost certainly be unconstitutional if applied to pure political speech. See Stone et al., The First Amendment 243 (3d ed. 2008) (" Presumably, the Court would not uphold a law restricting the location of theaters that show racist or anti-war films." ).

The differential treatment of adult entertainment establishments goes back at least as far as Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), in which the Supreme Court upheld zoning ordinances providing that adult theaters could not be located within 1,000 feet of any two other " regulated uses," nor within 500 feet of a residential area. The Court concluded that " [t]he city's interest in planning and regulating the use of property for commercial purposes is clearly adequate to support that kind of [minimum spacing] restriction applicable to all theaters within the city limits." Id. at 62-63, 96 S.Ct. 2440. The Court therefore held that " apart from the fact that the ordinances treat adult theaters differently from other theaters and the fact that the classification is predicated on the content of material shown in the respective theaters, the regulation of the place where such films may be exhibited does not offend the First Amendment." Id. at 63, 96 S.Ct. 2440.

A decade later, in a case whose resolution the Court said was " largely dictated by" Young, the Court held that the First Amendment permits municipal governments to use zoning laws as a means of addressing the " secondary effects" of adult establishments. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46, 47-48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Under Renton, local governments may limit the location of adult entertainment establishments in order " to prevent crime, protect the city's retail trade, maintain property values, and generally protect and preserve the quality of the city's neighborhoods, commercial districts, and the quality of urban life, [but] not to suppress the expression of unpopular views." Id. at 48, 106 S.Ct. 925 (alterations and internal quotation marks omitted). Thus, if a zoning ordinance serves " a substantial governmental interest and allows for reasonable alternative avenues of communication, " the First Amendment is satisfied. Id. at 50, 106 S.Ct. 925 (emphasis added). It is the latter prong of this test with which we are concerned here.

The over-arching legal question in the present case, as in many First Amendment zoning challenges, is whether the challenged zoning ordinance preserves " reasonable alternative avenues of communication" for adult-oriented businesses. See Buzzetti v. City of New York, 140 F.3d 134, 140-41 (2d Cir.1998) (citing Renton, 475 U.S. at 53-54, 106 S.Ct. 925). In the context of adult entertainment cases, we have held that the reasonableness inquiry requires an assessment of available other locations, Hickerson v. City of New York, 146 F.3d 99, 107-08 (2d Cir.1998), and whether these alternatives afford a reasonable opportunity to locate and operate such a business, Buzzetti, 140 F.3d at 140-41. See also Isbell v. City of San Diego, 258 F.3d 1108, 1112 (9th Cir.2001) (" To decide whether constitutionally sufficient alternatives exist, [a court should] first ... determine how many sites are available and then determine...

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