801 Conklin Street Ltd. v. Town of Babylon

• Citation: 38 F.Supp.2d 228
• Decision Date: 09 March 1999
• Docket Number: No. 95-CV-3062(JS).,95-CV-3062(JS).
• Parties: 801 CONKLIN STREET LTD., a New York Corporation, d/b/a the Crystal Café, Plaintiff, v. The TOWN OF BABYLON, by and through the Town Board of the Town of Babylon, Defendant.
• Court: U.S. District Court — Eastern District of New York

38 F.Supp.2d 228

801 CONKLIN STREET LTD., a New York Corporation, d/b/a the Crystal Café, Plaintiff, v. The TOWN OF BABYLON, by and through the Town Board of the Town of Babylon, Defendant.

No. 95-CV-3062(JS).

United States District Court, E.D. New York.

March 9, 1999.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Daniel Patrick O'Brien, O'Brien & O'Brien, Newconset, NY, Luke Charles Lirot, Lirot Dolan, P.A., Tampa, FL, for plaintiff.

John J. Burke, Jr., Town Attorney, Andrew Brick, Assistant Town Attorney, Town of Babylon, Lindenhurst, NY, for defendant.

MEMORANDUM AND ORDER

SEYBERT, District Judge.

Pending before the Court are cross-motions for summary judgment in Plaintiff's constitutional challenge to Defendant's zoning ordinance.

PROCEDURAL BACKGROUND

Plaintiff 801 Conklin Street, Ltd., a New York Corporation doing business as the "Crystal Cafe" (hereinafter "Plaintiff" or "Crystal"), commenced this action against the Town of Babylon (hereinafter "Defendant" or the "Town"), seeking a declaratory judgment declaring unconstitutional the Town's Adult Use Business Legislation (references to the Babylon Town Code are hereinafter referred to as the "Code"). In addition, Crystal asserts that preliminary and permanent injunctions enjoining the Town from enforcing the Code are required to protect its federal constitutional rights. Although the complaint alleged violations of both the United States and New York State constitutions, the cross-motions for summary judgment do not raise or discuss the state law claims.

Pending before the Court are Crystal's first amended motion for summary judgment and the Town's cross-motion for summary judgment. Crystal seeks: (1) summary judgment pursuant to Federal Rule 56(b) due to the constitutional infirmities of the applicable Code sections, and (2) an injunction preventing enforcement of the Code to the detriment of Crystal. The Town seeks: (1) an order granting summary judgment on all matters for which there exist no genuine issues of material fact, and (2) a denial of Crystal's motion for summary judgment on any matter for which there does exist an issue of fact.

FACTUAL BACKGROUND

The facts as set forth below, unless otherwise indicated, are not in dispute. Defendant, Town, by and through the Town Board of the Town of Babylon, is a Municipal Corporation and political subdivision of the State of New York, whose authority to enact and enforce zoning laws, regulations and ordinances is duly governed and limited by the State of New York. (Pl.'s "Statement of Material Facts" ¶¶ 1, 2, pursuant to Local Rule 56.1 (hereinafter "56.1").)

Plaintiff, Crystal, is a recognized legal entity with its principal place of business located in the Town of Babylon, Suffolk County, New York State. (Pl.'s 56.1 ¶ 1.) Crystal is a duly organized New York corporation operating a business that offers entertainment to the public in the form of recorded music and exotic dance performances. Crystal's business is within that class of land uses generally defined as an "adult entertainment cabaret," in Section 213-377 of the Code. (Pl.'s 56.1 ¶¶ 3, 7; Code § 213-377.) Section 213-377 defines all types of businesses that are treated as an "Adult Use" under the Code.

The expressive content of the dance performances, performed by independent professional artists and/or employees, includes an emphasis on sexual expression and the interest in human sexuality. The occasional exposure of various specified anatomical areas is an integral component of the expressive impact of the performance. (Pl.'s 56.1 ¶ 3.) Crystal's primary source of income was and is derived from public appeal, demand, and commerce in the expressive performances, for which the business receives remuneration directly from patrons and customers, as well as commerce in other ancillary hospitality services. (Pl.'s 56.1 ¶ 5.)

The parties agree that: (1) the performances offered by Crystal are not obscene as contemplated by contemporary standards and are protected activities under the First Amendment; (2) the performances are offered to the public for the specific purpose of presenting expressive matter of literary, artistic, political or scientific value; (3) the performances which take place at Crystal do not appeal to any prurient interest; and (4) as such, they are entitled to some level of First Amendment protection. (Pl.'s 56.1 ¶ 6.)

The parties disagree as to whether Crystal's operation preceded enactment of the applicable Code Section. Crystal claims that it provided the expressive dance performances described above for a significant period of time prior to the establishment or adoption of the Code, (Pl.'s 56.1 ¶ 8.), whereas the Town contends that Crystal incorporated and purchased the property and business subsequent to the adoption of the Code. (Def.'s 56.1 ¶ 1.)

On November 4, 1987, the Town advertised a public hearing ("Hearing") scheduled for, and held on November 17, 1987, at the Town House. Various individuals addressed the Town Board. (Def.'s 56.1 ¶¶ 9, 10.) Residents voiced concern over the impact that various Adult Use establishments could have on moral decency, the upbringing of children, and, to some degree, property values in the community. (Public Hearing of the Town Board, Town of Babylon, (hereinafter "Hearing"), at 3, 4, 7, 8 (filed as Exhibit B to Defendant's Notice of Cross-Motion For Summary Judgment, Opposition to Plaintiff's Motion for Summary Judgment, Objections to Plaintiff's Affidavit and Defendant's Memorandum of Law.)) Comments about similar zoning provisions enacted in the Town of Islip generally revolved around the fact that its constitutionality has been upheld in other courts. (Hearing at 3, 4, 5, 7.) It was expressed at the Hearing that similar concerns exist in Babylon which could be remedied by such a provision. (Hearing at 3-4.) The adoption of the subject legislation is reflected in the Babylon Town Code as being enacted December 15, 1987, by Local Law Number 11-1987. (Pl.'s 56.1 ¶ 10.)

The legislation purports to regulate the location of "Adult Uses" throughout the Town by prohibiting Adult Uses from: (a) locating within a 500 foot radius of any area zoned for residential use; (b) locating within a one-half mile radius of another Adult Use; and (c) locating within a 500 foot radius of any school, church, or other place of religious worship, park, playground, or playing field. (Pl.'s 56.1 ¶ 11; Code § 213-378.) In designating the setbacks specified above, the legislation gives no definition or description as to any formula for measurement (i.e., door to door; property line to property line; the shortest route of pedestrian traffic). (Pl.'s 56.1 ¶ 12.) Prior to the adoption of the legislation, there was no other legislation in place purporting to regulate adult use businesses in the Town differently than any other commercial site of public assembly. (Pl.'s 56.1 ¶ 13.)

The legislation provides that "Adult Uses" would be allowable only in any industrial district and only as a special exception by the "Board of Appeals after Public Hearing." (Pl.'s 56.1 ¶ 14; Code § 213-376(A).)

The legislation sets forth "purposes and considerations" as follows:

(1) In the execution of this Article, it is recognized that there are some uses which, due to their very nature, have serious objectionable characteristics. The objectionable characteristics of these uses are further heightened by their concentration in any one (1) area, thereby having deleterious effects on adjacent areas. Special regulation of these uses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhoods or land uses; (2) It is further declared that the location of these uses in regard to areas where our youth may regularly assemble and the general atmosphere encompassing their operation is of great concern to the Town of Babylon; (3) These special regulations are itemized in this Article to accomplish the primary purposes of preventing a concentration of these uses in any one (1) area and restricting their accessibility to minors.

(Pl.'s 56.1 ¶ 14; Code § 213-376(B).)

By virtue of the locational restrictions imposed by the subject legislation, after January 1, 1993, any pre-existing "nonconforming use" was to have terminated operation by that date and any business attempting to relocate would be subject to the Code's limitations pursuant to which they may be legally established or operated within the jurisdictional limits of the Town. (Pl.'s 56.1 ¶ 16.)

By Local Law, Special Exception Use Permits was added to the Babylon Town Code on April 8, 1988. (Pl.'s 56.1 ¶ 18; L.L. No. 2-1988.) The legislative findings enumerated in Section 213-382 state in part that the Board has "articulated the standards that it will duly consider in determining the imposition of conditions it may place upon particular uses of land in order to protect abutting landowners...." (Pl.'s 56.1 ¶ 18; Code § 213-382.)

Under Article XXXII, Section 213-383, General Standards for issuance, fourteen (14) separate and distinct findings must be made to establish a "special exception" that is not "permitted by right." (Pl.'s 56.1 ¶ 18; Code § 213-383(A).) Prior to a special use permit being issued, the Town Board must find:

(1) Such use is reasonable, necessary and will be in harmony with and promote the general interests and welfare of the surrounding community;

(2) The neighborhood character and surrounding property values are reasonably safeguarded;

(3) The proposed use will not prevent the orderly and reasonable use of adjacent property;

(4) The site is particularly suitable for the location of such use in the community;

(5) The access facilities are adequate for the estimated traffic from public streets, so as to ensure the public safety and to avoid traffic congestion;

(6) There is room for creation of off-street parking and truck-loading spaces at least in the number...