Stringfellow's of New York, Ltd. v. City of New York
| Citation | 91 N.Y.2d 382,694 N.E.2d 407,671 N.Y.S.2d 406,1998 WL 77749 |
| Parties | , 694 N.E.2d 407, 1998 N.Y. Slip Op. 1711 STRINGFELLOW'S OF NEW YORK, LTD., Appellant, v. CITY OF NEW YORK et al., Respondents, Times Square Business Improvement District et al., Intervenors-Respondents. AMSTERDAM VIDEO INC. et al., Appellants, v. CITY OF NEW YORK et al., Respondents, and Times Square Business Improvement District et al., Intervenors-Respondents. Rachel HICKERSON et al., Appellants, v. CITY OF NEW YORK et al., Respondents, and Times Square Business Improvement District et al., Intervenors-Respondents. |
| Decision Date | 24 February 1998 |
| Court | New York Court of Appeals |
This appeal concerns the validity of New York City's Amended Zoning Resolution governing the location of adult entertainment establishments throughout the five boroughs. We conclude that on this record the Supreme Court correctly granted summary judgment declaring that the challenged ordinance does not violate plaintiffs' constitutional rights of free expression.
The "adult" establishments at the center of this controversy offer various forms of sexual expression. These businesses include bookstores, theaters, stores dealing in videotaped material and places of live entertainment. In 1965, there were only nine such establishments in New York City. That figure has fluctuated over the past 30 years, but the last decade has experienced a steady growth in the industry, with sections of Manhattan and Queens showing the greatest development. By 1993, there were 177 adult establishments operating in New York City: 107 in Manhattan, 44 in Queens, 15 in Brooklyn, eight in the Bronx and three in Staten Island.
In September of 1993, the Department of City Planning (DCP) undertook an evaluation of the impact of such property uses on urban life. Published in September 1994, the DCP study was divided into two parts. First, the DCP examined similar studies conducted in nine other localities: 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. The DCP found evidence in these reports that adult businesses often have such negative secondary impacts as increased crime rates, depreciated property values and deteriorated community character.
The DCP also sought to identify the specific adverse secondary effects caused by adult establishments in New York City itself. To accomplish that goal, the DCP both conducted its own independent analysis of six selected areas in the City and examined other earlier studies of the City's adult uses. Among the other materials examined were a 1977 report by the City Planning Commission (CPC); a 1983 Annual Report of the Mayor's Office of Midtown Enforcement; a 1993 study conducted by the Chelsea Action Coalition and Manhattan Community Board 4; testimony at an October 1993 public hearing before the Task Force on the Regulation of Sex-Related Businesses; an April 1994 Times Square Business Improvement District (TSBID) study; and a 1993 survey compiling media accounts and complaint correspondence to City agencies.
The DCP's independent study confirmed that the number of adult establishments in the City had increased considerably in recent years. The DCP further found that as adult uses proliferated, they tended to cluster. In Manhattan, for example, adult businesses were concentrated in central locations such as the Times Square area. In the other boroughs, such businesses lined major vehicular routes such as Queens Boulevard in Queens and Third Avenue in Brooklyn. Additionally, the vast majority of adult establishments were located in zoning districts that permitted residential development.
Based on the material before it, the DCP determined that there were significant adverse impacts attributable to adult enterprises in the City, including downward pressure on property values and increased crime rate in areas where adult uses are most concentrated. A pivotal finding of the DCP was that a large majority of surveyed business and community organizations believe that their neighborhoods are adversely affected by the presence of adult uses and that this perception itself leads to disinvestment and a marked decline in economic and pedestrian activity.
The Zoning Resolution of the City of New York, adopted on December 15, 1960, regulates commercial establishments in the City. Historically, the Resolution did not distinguish between adult establishments and other commercial ventures. Like other businesses, adult enterprises simply had to satisfy the requirements for the particular "use group" into which they were classified. Consequently, adult uses were permitted in most of the City's commercial and manufacturing districts, which frequently also allowed residential development or were mapped close to residential districts.
Prompted by the findings and final recommendation of the DCP study that adult establishments should be regulated differently from other commercial establishments because of their unique negative effects, the CPC directed the DCP in November of 1994 to draft a set of adult-use zoning restrictions. Concomitantly, the City Council imposed a one-year moratorium on the creation or enlargement of adult-use establishments.
On March 21, 1995, the DCP and the City Council Land Use Committee jointly sought to amend the Zoning Resolution and establish a permanent and comprehensive set of regulations governing adult uses. Over the next several months, the City's 59 community boards, five borough boards and borough presidents, the CPC and the City Council reviewed the proposed amendments and conducted public hearings. On September 18, 1995, the CPC approved the proposed amendments, noting that they were "an appropriate and necessary response to the adverse secondary effects stemming from adult establishments" and that they nonetheless continue "to provide ample opportunity for adult establishments to locate and operate throughout New York City." After further public hearings and debate, the City Council gave final approval to Text Amendment N 950384 ZRY on October 25, 1995.
As adopted by the City Council, the amendments are applicable to any "adult establishment," defined as those commercial enterprises in which a "substantial portion" of the premises are used as an "adult book store," an "adult eating or drinking establishment," an "adult theater" or "other adult commercial establishment" (Amended Zoning Resolution § 12-10). Covered facilities are those within the foregoing four categories that "regularly feature" or devote a "substantial portion" of their stock-in-trade to entertainment or material that is "characterized by an emphasis on" "specified anatomical areas" or "specified sexual activities" (id.). "Adult eating or drinking establishments," "adult theaters" and "other adult commercial establishments" are covered only if they exclude minors because of their age (id.).
The amendments to the zoning code include an array of site limitations and anticlustering provisions. Under provisions that predate the amendments, new commercial establishments, including new adult establishments, are barred from the City's residential zones. Under the amendments, adult establishments, new and old, are now also barred from certain districts that are zoned for manufacturing and commercial use but also permit residential development. The regulated uses are permitted in all other manufacturing districts and in all high-density, general commercial districts (Amended Zoning Resolution § 32-01[a]; § 42-01[a] ).
Within those districts where adult uses are authorized, the adult establishment must be located at least 500 feet from schools, houses of worship, day care centers, other adult uses and zoning districts where new residential development is allowed (Amended Zoning Resolution § 32-01[b]; § 42-01[b] ). In addition, no more than one adult establishment may be located on a single zoning lot, and these establishments cannot exceed 10,000 square feet of usable floor area and...
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