G. & A. Books, Inc., In re
| Citation | 770 F.2d 288 |
| Decision Date | 08 August 1985 |
| Docket Number | No. 1287,D,1287 |
| Parties | In re G. & A. BOOKS, INC., 250 Book Center, Inc., Courageous Books, Inc., and M.J.M. Exhibitors, Inc., Plaintiffs, M.J.M. EXHIBITORS, INC., Plaintiff-Appellant, v. William J. STERN, individually and as Chairman of the New York State Urban Development Corporation, William H. Daly, individually and as Director of the Office of Midtown Enforcement of the City of New York, Steven Spinola, individually and as President of the Public Development Corporation of the City of New York, Herbert J. Sturz, individually and as Chairman of the City Planning Commission of the City of New York, Edward I. Koch, individually and as Mayor of the City of New York, the City of New York, Park Tower Realty Corp., Planning Innovations, Inc., Tishman Speyer Properties and Equitable Life Assurance Society of the United States, Defendants-Appellees. ocket 85-7190. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Ralph J. Schwarz, Jr., New York City (Keith N. Costa, New York City, on brief), for plaintiff-appellant.
Martin Flumenbaum, New York City (Jay Cohen, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, of counsel), for defendants-appellees Tishman Speyer Properties and Equitable Life Assur. Society of U.S.
June A. Witterschein, New York City (Frederick A.O. Schwarz, Jr., Corp. Counsel of City of New York, Jeffrey E. Glen, Leonard Koerner, Robert J. Pfeffer, Gary Schuller, New York City, of counsel), for Municipal defendants-appellees.
Shea & Gould, New York City (Bernard D. Fischman, Dean G. Yuzek, Judith L. Spanier, New York City, of counsel), for defendant-appellee Park Tower Realty Corp.
Leahey & Johnson, P.C., New York City (Peter James Johnson, Asher Marcus, Kevin B. Lynch, Michael Conforti, New York City, of counsel), for defendant-appellee William J. Stern.
Devov Morris & Hammerling, New York City (Robert C. Hammerling, Marshall H. Fishman, New York City, of counsel), for defendant-appellee Planning Innovations, Inc.
Before MANSFIELD, VAN GRAAFEILAND and PIERCE, Circuit Judges.
M.J.M. Exhibitors, Inc. ("MJM"), which operates an adult retail store on 42nd Street, using peep machines for the exhibition of sexually-oriented films, selling tapes, and furnishing live performances, appeals from an order and judgment of the Southern District of New York, Constance Baker Motley, Chief Judge. The order denied appellant's motion for a preliminary injunction against various municipal, state, and corporate defendants' proceeding with the New York State Urban Development Corporation's ("UDC") Times Square Rehabilitation Project (the "Project") and granted summary judgment dismissing the action. The complaint, filed by MJM and three other plaintiffs operating adult retail stores on 42nd Street, alleges that defendants' actions in furtherance of the Project, including destruction of buildings in which plaintiffs currently operate their businesses, would violate plaintiffs' rights under This case arises from the efforts of the City of New York (the "City") and the UDC to implement a comprehensive plan for the elimination of blight and the rehabilitation of the 42nd Street/Times Square area of Manhattan, New York City. Under the New York State Urban Development Corporation Act, New York Unconsolidated Laws, Secs. 6251, et seq. (McKinney 1979), the Legislature vested the UDC with broad powers to enter into contracts and acquire property for the reconstruction, improvement and rehabilitation, in cooperation with private enterprise, of slum or blighted areas for the purpose of eliminating crime and delinquency, improving the physical, educational and economic development of such areas, and increasing employment and business opportunities therein.
the First and Fourteenth Amendments. Finding that the proposed condemnation of plaintiffs' property did not constitute an illegal prior restraint and that the Project plan did not classify speech on the basis of content, or burden it with overly restrictive regulations, the district court granted summary judgment to defendants. We affirm.
In June 1980 the City and the UDC entered into a formal "Memorandum of Understanding," in which they agreed to cooperate to improve and redevelop the 42nd Street area, in order to ameliorate the "street crime, substandard and [unsanitary] conditions, undesirable uses and physical and social blight which have impaired the sound growth and development of the Project Area and of the City as a whole." By June 1981 these two parties had issued the "42nd Street Development Project: A Discussion Document" and design guidelines for the Project, and had made a formal request for proposals from private developers for the construction of new buildings to be used as retail stores, theatres, and for other purposes. The "Project Area" consists of a 3-block section between 40th and 42nd Streets, bounded by Broadway and Eighth Avenue. The UDC Board of Directors also issued two documents, "Basis for Blight Finding" and "Statutory Findings of Substandard Area," setting forth the factual findings required by the UDC Act. Having in September 1981 received and reviewed the proposals made by private developers, conditional designations of developers to construct and maintain the proposed office buildings, merchandise mart, hotel and theatres for the project were made. An environmental impact statement was submitted pursuant to the New York State Environmental Quality Review Act ("SEQRA"), New York Environmental Conservation Law, Secs. 8-0101, et seq. (McKinney 1984), and public hearings were held by the UDC pursuant to the UDC Act, SEQRA, New York's Eminent Domain Procedure Law and the New York Historic Preservation Act. In November 1982 the UDC formed the Times Square Redevelopment Corporation ("TSRC") and entrusted it with primary responsibility for the development of the Times Square area.
The primary document setting forth the factual basis for the Project is the Final Environment Impact Statement ("FEIS"), issued in August 1984 after several public meetings responding to an earlier Draft Environmental Impact Statement. The FEIS graphically depicts the social blight in the Project Area:
"In addition to the uses on the blocks that are distasteful to many [including eight theatres showing action, horror, and brutality films and four showing pornographic films, 15 sex businesses (all prominently displaying sexually explicit material), bar outlets, window displays of knives and blackjacks, bars, fast food restaurants, and arcades], visitors often find the collection of hustlers and loiterers threatening. At virtually any hour, at least a few people will be found 'hanging out' along the sidewalks; and in the afternoons and evenings, the ranks can swell dramatically and number in the hundreds. The drug dealers and their customers, public drinkers, homeless persons, young people simply standing around, gathered as they often are in groups blocking the sidewalks and aggressively soliciting business, have an impact far beyond their absolute numbers. Forty-second Street is their territory
and those passing through it often perceive that they do so at their own risk.
The FEIS treats the severe underuse of the land in the Project Area's 13 acres as further evidence of blight. Only 4,000 people, an extraordinarily low figure for a five-block area located adjacent to one of the world's most densely developed business districts, work in the area. As a result of an absence of development for more than half a century, the existing buildings are old and run down; most are substandard for their intended commercial uses and many are vacant above the first floor. While the area is zoned for the highest density allowed in the City, 16% of the land area is used only for parking, 72% of the development rights have not been used, and 18% of the developed parts is vacant. The tax yield from the Project area is commensurately low: the FEIS estimated that while the existing properties in the Project area were expected to pay approximately $5.4 million in taxes in 1984-85, a single building a block away was expected to pay $6.2 million in taxes.
To overcome these conditions, the FEIS defined the following project goals:
"First, to eliminate the blight and physical decay, as well as the crime and frightening street life, that now characterizes the West 42nd Street area;
Second, to preserve and restore the area's extraordinary older theaters for theatrical and upgraded movie use, and, by so doing, to revitalize the project area as a theater and entertainment center serving tourists and all New Yorkers;
Third, to develop the project area's commercial and retail potential to produce a lively, healthy street ambience and to support the City's policy (as expressed in the new Midtown Zoning) that encourages the movement of Midtown office construction westward;
Fourth, to held upgrade public facilities in the project area, particularly the Times Square subway station;
Fifth, to increase the project area's economic contribution to the City as a whole, both through increased revenues to the City and expanded private investment and employment opportunities; and
Sixth, to restore the project area's role as a positive influence on the adjacent communities,...
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