Town of Islip v. Caviglia

• Decision Date: 11 May 1989
• Citation: 542 N.Y.S.2d 139,540 N.E.2d 215,73 N.Y.2d 544
• Parties: , 540 N.E.2d 215, 57 USLW 2694 In the Matter of TOWN OF ISLIP, Respondent, v. Frank CAVIGLIA et al., doing business as Happy Hour Bookstore, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 139

542 N.Y.S.2d 139

73 N.Y.2d 544, 540 N.E.2d 215, 57 USLW 2694

In the Matter of TOWN OF ISLIP, Respondent, v. Frank CAVIGLIA et al., doing business as Happy Hour Bookstore, Appellants.

Court of Appeals of New York.

May 11, 1989.

Bernard Fromartz, Brooklyn, for appellants.

Robert J. Cimino, Town Atty., Hauppauge, and Doris E. Roth, for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Petitioner, Town of Islip, seeks to enjoin respondents from continuing operation of an adult bookstore in a prohibited zone in violation of the Town's zoning ordinance. The ordinance differentiates between certain "adult" uses, i.e., bookstores, theaters, motels, cabarets and massage parlors which exclude minors by reason of age and those which do not, and limits the operation of adult uses to areas zoned Industrial I. It also provides that nonconforming adult uses shall be amortized over a period of years based on a graduated scale of investment in the business. ¹ The principal issue presented is whether the ordinance constitutes an impermissible limitation of respondents' constitutional free speech rights.

In a thoughtful and comprehensive opinion by Justice Arthur Spatt the Appellate Division, Second Department, held that the portion of the ordinance that restricted adult uses to the Industrial I zone was a valid exercise of the Town's zoning power because it restricted only the time, place and manner of respondents' rights, that it was neither vague nor overbroad and that it provided a lawful means of amortizing nonconforming uses before excluding them from Business I districts. The court invalidated and severed a provision of the ordinance, however, which required adult uses to obtain a special permit before locating in an industrial zone. The Town has not appealed from that portion of the order and thus the issue before us is whether the ordinance as approved by the Appellate Division is constitutionally valid under the Federal and State Constitutions.

I

The Town of Islip is located on the south shore of Suffolk County on Long Island. It consists of 92 square miles of territory and has a population of about 300,000 persons. There are four villages and several hamlets in the Town, each with its own downtown district. In the 1970's, the Town was faced with an unregulated proliferation of adult uses in these downtown districts and its officials, with the help of professional planners, undertook a detailed study of their effects on the surrounding community. Thereafter, a written report was prepared for the Town, the "Study & Recommendation for Adult Entertainment Businesses" (Report), which indicated the nature of the governmental interest to be protected, i.e., the stability and revitalization of the neighborhoods, and also the harm that adult businesses posed to that interest. It demonstrated, by analysis of each adult entertainment business, the harmful effect of these uses on the surrounding area, and how those effects could be mitigated by relocating the businesses. The study was prepared following the United States Supreme Court's decision in Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310, reh. denied 429 U.S. 873, 97 S.Ct. 191, 50 L.Ed.2d 155 and, consistent with that decision, it recognized the First Amendment concerns involved and sought to accommodate the rights of proprietors with the legitimate goals of sound planning and land use regulation.

Based upon this study, the Town formulated its first written comprehensive plan of community development focusing on revitalizing downtown business areas and reaffirming the identities of its various villages and hamlets. On September 23, 1980, pursuant to the plan, it adopted the adult use ordinance now under consideration. The ordinance attempts to phase out and relocate existing adult uses through a schedule of amortization based upon the user's investment in the business and to control future adult uses by limiting their establishment to Industrial I districts.

Respondent Caviglia has operated the Happy Hour Bookstore in the heart of the downtown district of the Village of Bay Shore since June 12, 1980 on property he owns with respondent Weinkselbaum. Until 1985 an adult theater was located next to it. The store excludes minors by reason of age and therefore is an adult bookstore within the definition of the ordinance. It is a nonconforming use located in a Business I district but its authorized amortization period has expired and accordingly, petitioner sought to enjoin the store's operation. Respondents opposed the injunction contending that the ordinance violated their rights under the First Amendment of the United States Constitution and article I, § 8 of the State Constitution. Petitioner moved for a preliminary injunction and both parties moved for summary judgment. Supreme Court denied the motion for a preliminary injunction and both motions for summary judgment. Further, it struck the vagueness defense, determined that respondents lacked standing to challenge the ordinance on vagueness grounds because the ordinance concededly applied to them and they could not assert that claim on behalf of third parties. In 1987 the parties entered into an agreed statement of facts and submitted the matter to Supreme Court for final determination. The court upheld the constitutionality of the ordinance and granted the Town a permanent injunction. It also upheld the amortization provisions of the ordinance and declined to address the vagueness issue, finding that the prior determination of the court was the law of the case. On appeal the Appellate Division modified the judgment by striking the provisions of the ordinance which required proprietors to obtain a special permit before establishing an adult use in an Industrial I district and otherwise affirmed.

II

Analysis starts with a recognition of the broad power of municipalities to implement land use controls to meet the increasing encroachments of urbanization on the quality of life (see generally, Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; Asian Ams. for Equality v. Koch, 72 N.Y.2d 121, 531 N.Y.S.2d 782, 527 N.E.2d 265; Matter of Harbison v. City of Buffalo, 4 N.Y.2d 553, 176 N.Y.S.2d 598, 152 N.E.2d 42). These restrictions on the use of real property rest upon and are justified as a proper exercise of the police power to advance the public health, safety and welfare (Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 102, 99 L.Ed. 27; Udell v. Haas, 21 N.Y.2d 463, 469-470, 288 N.Y.S.2d 888, 235 N.E.2d 897). Because zoning ordinances are legislative acts they enjoy a strong presumption of constitutionality and if there is a reasonable relation between the end sought to be achieved and the means adopted to achieve it the regulation will be upheld (Asian Ams. for Equality v. Koch, supra, 72 N.Y.2d at 132, 531 N.Y.S.2d 782, 527 N.E.2d 265; McMinn v. Town of Oyster Bay, 66 N.Y.2d 544, 549, 498 N.Y.S.2d 128, 488 N.E.2d 1240; Shepard v. Village of Skaneateles, 300 N.Y. 115, 118, 89 N.E.2d 619). If the issue is "fairly debatable", the legislative judgment on the necessity for such regulation is to be respected by the courts (Euclid v. Ambler Realty Co., supra 272 U.S. at 388, 47 S.Ct. at 118; see also, Asian Ams. for Equality v. Koch, supra, 72 N.Y.2d at 131-132, 531 N.Y.S.2d 782, 527 N.E.2d 265; Matter of Town of Bedford v. Village of Mount Kisco, 33 N.Y.2d 178, 186, 351 N.Y.S.2d 129, 306 N.E.2d 155, rearg. denied 34 N.Y.2d 668, 355 N.Y.S.2d 1027, 311 N.E.2d 655).

Undeniably, the purpose of preventing the deterioration of neighborhoods, including downtown business districts, comes well within the confines of the public welfare that defines the limits of the police power (see, Berman v. Parker, 348 U.S. 26, 32-33, 75 S.Ct. at 102-103, supra; see also, 1 Anderson, New York Zoning Law and Practice § 9.27, at 442 [3d ed.]. Moreover, planning studies have established that adult bookstores and other adult entertainment facilities are generally injurious to the maintenance and development of healthy commercial and residential areas (see, Toner, Regulating Sex Businesses, American Society of Planning Officials Planning Advisory Service Rep. No. 327 [19]; Interim Report, Boston Redevelopment Authority, Entertainment District Study [Apr. 1974]; see also, Young v. American Mini Theatres, 427 U.S. 50, 54-55, 96 S.Ct. 2440, 2444-2445, 49 L.Ed.2d 310, supra, relying on District Court's findings, at 373 F.Supp. 363, 365; Northend Cinema v. City of Seattle, 90 Wash.2d 709, 711-712, 585 P.2d 1153, cert. denied sub nom. Apple Theatre v. City of Seattle, 441 U.S. 946, 99 S.Ct. 2166, 60 L.Ed.2d 1048). Accordingly, many municipalities have attempted to control such uses, either by aggregating them ( e.g., Renton v. Playtime Theatres, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29) or dispersing them (e.g., Young v. American Mini Theatres, supra ).

When the municipality's zoning power is used to regulate bookstores or theaters operating lawfully, however, a First Amendment dimension is added (see, Young v. American Mini Theatres, supra; Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, reh. denied 361 U.S. 950, 80 S.Ct. 399, 4 L.Ed.2d 383). Regulation must not be aimed at suppressing the content of the material shown or sold ( Renton v. Playtime Theatres, supra, 475 U.S. at 47-48, 106 S.Ct. at 929-930; Young v. American Mini Theatres, supra, 427 U.S. at 67, 71, n. 34, 96 S.Ct. at 2450, 2453, n. 34 [plurality opn.]; id., at 79-80, 81, n. 4, 96 S.Ct. at 2456-2457, 2458 n. 4 [Powell, J., concurring]. Notwithstanding this broad injunction against suppressing speech, the Supreme Court has sustained zoning ordinances regulating adult uses, holding that under the Federal Constitution they were not content-based restrictions on expression. The rule, as formulated by the Renton court, permits municipalities to regulate such uses through the zoning power if they can...