Agenda - Planning Commission - 06/03/2010

Home

Zoning Bulletin April 25, 2010 ~ Volume 4 ~ No. 8 'i ~ existing adult entertainment uses located in zoning districts other than SCB, LI, or III would become nonconforming after January 1, 1998. TJS of New York, Inc. ("TJS") owned and operated an adult enter- tainment establishment in the town. TJS had bought "The Oasis" from the previous owner in 2002. The Oasis was located in a neighborhood business ("NB") zone. Accordingly, it had become a nonconforming use under the Ordinance. In June 2003, the town moved for an order of closure-asking a -court to close The Oasis pursuant to the Ordinance. TJS responded by asking the court to declare the Ordinance uncon- stitutional. TJS argued that the Ordinance "violated the First Amend- ment because it did not provide a reasonable number of locations for new adult entertainment businesses to open and operate in [the town]." The town argued that "the only relevant question was whether ad- equate alternative locations existed at the time the [O]rdinance was passed." The town claimed there had been at least 35 alternative loca- tions at the time the Ordinance was passed. The district court agreed with the town. It held that the Ordinance was constitutional because there were adequate alternative sites avail- able for sexually oriented businesses "on the date of enactment." fl~ ^) TJS appealed. The Court's Decision: Judgment of district court vacated and remanded. Disagreeing with the disuict court, the United States Court of Ap- peals, Second Circuit, held that "the First Amendment requires courts ', to consider the adequacy of alternative sites available when the ordi- ' nance is challenged," "and not only at the time it is passed." i The court explained that "the First Amendment permits municipal governments to use zoning laws as a means of addressing the `second- - ary effects' of adult establishments." Thus, local governments may lim- it the location of adult entertainment establishments in order to: "pre- vent crime, protect the city's retail trade, maintain property values, and generally protect and preserve the quality of the city's neighborhoods, commercial districts, and the quality of urban life, [but] not to sup- press the expression of unpopular views." In other words, if a zoning ordinance limiting the location of adult entertainment establishments "serves `a substantial governmental interest and allows for reasonable alternative avenues of~communication,"' it satisfies the First Amend- ment and is constitutional. The court explained further that "whether the challenged zoning or- dinance preserves `reasonable alternative avenues of communication' -- for adult-oriented businesses" requires an assessment of: (i) available other locations; and (2) whether those alternative locations afford a ' reasonable opportunity to locate and operate such a business. Also, © 2010 Thomson Reuters 57