Adult Entertainment — New York City’s Zoning Scheme Meets Well-Defined Standards

March 25, 1998

The recent decision by the New York Court of Appeals/1 upholding the validity of New York City’s amended zoning regulation governing the location of adult entertainment establishments throughout the five boroughs has received a great deal of media attention./2 The interest that the case has generated is warranted only because it involves “42nd Street,” high-profile plaintiffs, a controversial industry, and a Mayor intent on improving the quality of life in a city that has been described as “ungovernable.”
Under ordinary circumstances, the Court of Appeals decision should not have been unexpected./3 The Court’s opinion was based on well-entrenched and soundly-reasoned decisions/4 as well as on even more established decisions by the U.S. Supreme Court./5

It should be no surprise, therefore, that, as this ruling again makes clear, municipalities may constitutionally bar adult establishments from, or within, a specified distance of residentially-zoned areas and facilities in which families and children congregate. Moreover, zoning ordinances may be used to prohibit an adult business from operating within a specified distance of another to avoid the undesirable impacts associated with clustering.

Studies Undertaken

The number of adult entertainment businesses operating in New York City has skyrocketed over the past few decades. In 1965, there were nine; by 1993, there were 177.

In September 1993, the New York City Department of City Planning (DCP) undertook an evaluation of the impact of these uses on city life. The study, which was published in September 1994, first examined similar studies conducted in nine other localities, which represent a cross-section of the nation: 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 whether specific adverse secondary effects were caused by adult establishments in New York City itself. Toward that end, the DCP conducted its own independent analysis of six selected areas in the city. It also examined other earlier studies of the city’s adult uses, including a 1977 report by the City Planning Commission; 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 study; and a 1993 survey compiling media accounts and complaint correspondence to city agencies.

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 in areas where adult uses were most concentrated. A pivotal finding of the DCP was that a large majority of surveyed business and community organizations believed that their neighborhoods were adversely affected by the presence of adult uses and that this perception itself led to disinvestment and a marked decline in economic and pedestrian activity. Accordingly, the DCP recommended that the city should regulate adult establishments differently from other commercial establishments because of their unique negative secondary effects.

The New York City Council thereafter amended New York’s zoning resolution with respect to adult establishments./6 The amendments included site limitations and anti-clustering provisions. As a result, New York’s zoning resolution barred new adult establishments from the city’s residential zones and it barred new and old adult establishments from certain districts that are zoned for manufacturing and commercial use but also permit residential development; it permitted the regulated uses in all other manufacturing districts and in all high-density general commercial districts.

Moreover, as an additional limitation, 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. 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 cellar space. The amendments also impose restraints on the size, placement, and illumination of accessory business signs.

Suit Filed

Owners and patrons of some adult establishments sued the city and related officials alleging that the amended zoning resolution deprived them of their right to free expression. They sought relief in the form of a judgment declaring the zoning amendments unconstitutional.

The parties moved for summary judgment. The Supreme Court, after receiving 10,000 pages of pleadings, affidavits, exhibits, and briefs, granted the defendants’ motion for summary judgment. The appellate division unanimously affirmed, and the plaintiffs appealed to the Court of Appeals.

The Court noted that it has long recognized the considerable authority of municipalities to implement zoning plans and programs to meet the increasing encroachments of urbanization on the quality of their residents’ lives./7 It pointed out, however, that municipal zoning authority is not completely unfettered. For one thing, it said, ordinances that aim to curb “adult” uses implicate speech or conduct that is protected by the First Amendment. Relying on its prior decisions/8 the Court then analyzed whether the amended New York City zoning resolution properly balanced community needs and free expression.

The Court said that the threshold issue was whether the city’s zoning amendments were purposefully directed at controlling the content of the message conveyed through adult businesses or were instead aimed at an entirely separate societal goal. It concluded from the amendments’ legislative history that ameliorating the negative social consequences of proliferating adult uses was the city’s only goal.

The plaintiffs disputed that conclusion, citing comments from several city council members and other city officials as evidence of an alleged improper motive to eradicate this form of expression. As it had done before,/9 the Court rejected an attempt to invalidate a zoning ordinance “simply because one or more legislators sought to suppress protected expression.”

The Court also found that it was not significant that the amended zoning resolution defined adult uses in part by the content of the entertainment offered. In the Court’s view, the key issue was not whether the regulated establishments were defined without reference to content but whether the ordinance’s goal was unrelated to suppressing that content.

The Court also found that the amendments were no broader than necessary to meet the city’s goal. “By preventing adult businesses from locating in potential residential districts while allowing such establishments to locate in manufacturing and commercial districts, the amendments protect only those communities and community institutions that are most vulnerable to their adverse impacts,” the Court said. Alternative Avenues

Next, the Court analyzed the most crucial issue, whether there were reasonable alternative avenues of communication available to the plaintiffs. There was no showing by the plaintiffs that enforcement of the ordinance would either substantially reduce the total number of adult outlets or significantly reduce the accessibility of those outlets to their potential patrons.

On the other hand, the city demonstrated that there were at least 500 potential sites for adult establishments to relocate and operate under the amended zoning resolution. In addition, the city asserted that all of the areas in Manhattan zoned for adult use and at least 80 percent of the land area in the other boroughs are within a 10-minute walk from a subway line or a major bus route. The Court found that this satisfied the city’s initial burden of showing that the space designated for adult uses is adequate to accommodate the 177 existing adult businesses.

The plaintiffs claimed that some of the sites were insufficient. For example, they noted that some were industrial. The Court reiterated, however, that it has specifically approved a local zoning ordinance that restricted adult uses to an industrial zone./10

The plaintiffs also eliminated undeveloped land, waterfront property, warehouse areas, and parking lots as unsuitable receptors. The Court rejected this argument as well, noting that other cases have expressly recognized such areas as potentially available relocation sites./11 It therefore upheld the appellate division’s decision affirming the Supreme Court’s ruling granting summary judgment.

Conclusion

A municipality that is considering regulation of adult uses because of the secondary effects of such uses must rely on studies reflecting the problems. These studies should relate to the municipality involved and they may include anecdotal evidence in which neighbors, business owners, real estate brokers, and consultants explain the drawbacks associated with adult entertainment businesses as they perceive them./12

Significantly, studies from other communities also may be considered in evaluating the secondary effects of adult businesses. That is what New York City did.

This decision should finally establish the factual basis on which municipalities may regulate adult uses. If, with all of its financial and human resources, New York City, having studied the issue of secondary effects on a local and national basis, can not amend its zoning ordinance in this fashion, what chance do smaller cities or towns anywhere else in New York State or across the country have? The studies are clearly adequate.

If 500 sites in New York City, the vast majority of which are within a short walk from a major subway or bus line, are deemed insufficient to allow the relocation of 150 or so adult entertainment businesses, what municipality could hope to enact a lawful zoning plan for adult entertainment businesses?

The U.S. Supreme Court has stated the fact that adult entertainment businesses “must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation.”/13

The unmistakable message from the New York Court of Appeals and the U.S. Supreme Court is that local governments may successfully solve the problems (i.e., the secondary effects) caused by adult entertainment businesses. U.S. District Judge Cedarbaum’s refusal to permanently block the implementation of the city’s amended zoning resolution is further support for that conclusion. Unless the Second Circuit decides to reevaluate well-settled constitutional law, its March 17 decision to delay enforcement of the zoning resolution should only be temporary.

NOTES:

1. Stringfellow’s of New York, Ltd. v. City of New York, Nos. 17, 18, and 19 (N.Y. Feb. 24, 1998).

2. See, e.g., Benjamin Weiser, “Judge Blocks Zoning Limit On Sex Shops,” The New York Times, Feb. 28, 1998 at A1; Benjamin Weiser, “Judge To Lift Curb on Sex-Shop Law,” The New York Times, March 7, 1998 at B3; “Should Zoning Be Used Against Adult Businesses?” Newsday, March 15, 1998 at B7.

3. See John M. Armentano, “Adult Entertainment Uses,” New York Law Journal, May 3, 1995 at 5 (“Local governments can enact zoning ordinances concentrating or dispersing adult entertainment uses, such as adult motion picture theaters, that will withstand attack under both the federal and New York state constitutions”).

4. See e.g., Town of Islip v. Caviglia, 73 N.Y.2d 544 (1989) and People ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553 (1986).

5. See, e.g., Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) and Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976).

6. The amended zoning resolution defines an adult establishment as a commercial enterprise 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.”

7. See, e.g., Asian Americans for Equality v. Koch, 72 N.Y.2d 121 (1988).

8. See cases cited in footnote 4, supra.

9. See Town of Islip, supra.

10. See Town of Islip, supra.

11. See Town of Islip, supra, and Renton, supra.

12. It will be interesting to see whether anecdotal evidence will be used in the future to justify other zoning ordinances.

13. Renton, supra at 54.

John M. Armentano, a partner with the Long Island law firm of Farrell Fritz, P.C., represents local governments and developers in zoning, land use and environmental matters, including litigation.

This article is reprinted with permission from the March 25, 1998 edition of the New York Law Journal.

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