Agenda - Planning Commission - 11/02/2017

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Zoning Bulletin July 25, 2017 I Volume 11 1 Issue .14 doubt on a municipality's rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance." Notably, the Court of Appeals interpreted the test to mean that, with respect to the first stage, "a municipality's burden to prove that it has a substantial interest in regulating a particular adult activity is not a very heavy one." The court said that a local government implementing zoning that affects adult businesses must show there is a substantial govern- mental interest to justify restrictions on protected speech, but the government "retains discretion to make its findings from studies or other supportive infor- mation and to draw reasonable conclusions about which regulatory techniques will be most beneficial in addressing the findings." The Court of Appeals found the City had met its burden to justify a ratio- nale for the 2001 Amendments. However, it also found that the Businesses had furnished sufficient evidence disputing the City's factual findings. Thus the burden shifted back to the City "to supplement the record with evidence renewing support for its rationale" for the 2001 Amendments by showing that businesses technically meeting the 60/40 were not "so transformed in character that they no longer resemble the kinds of adult uses found . . . to create nega- tive secondary effects." The court said that if the City was found to have "fairly supported its position on sham compliance—i.e., despite formal compliance with the 60/40 formula, these businesses display a predominant, ongoing focus on sexually explicit materials or activities, and thus their essential nature has not changed —the City [would] have satisfied its burden to justify strengthen- ing the 1995 Ordinance by enacting the 2001 Amendments, and will be entitled to judgment in its favor." If not, the Businesses would prevail on their claim that the 2001 Amendments were "insufficiently narrow and therefore violated their free speech rights." On remand, in 2010, the trial court upheld the 2001 Amendments. In 2011, the Appellate Division reversed, vacated the findings of constitutionality, and remanded. The Appellate Division directed the trial court to "specify the criteria by which it determined that the [Businesses'] essential nature was sim- ilar or dissimilar to the sexually explicit adult uses underlying the 1995 Zon- ing Ordinance." The Appellate Division instructed the trial court to use vari- ous characteristics of adult establishments to determine whether the Businesses retained a predominate focus on sexually explicit materials or activities, such as: the presence of large signs advertising adult content; a large quantity of peep booths featuring adult films; or the exclusion of minors from the premises. Once again on remand, in 2012, the trial court struck down the 2001 Amendments as an "unconstitutional violation of the First Amendment." The trial court found the Businesses had all essentially divided their venues into two areas —adult and non -adult. The court thus concluded that the Businesses "no longer operate[d] in an atmosphere placing more dominance of sexual matters over nonsexual ones." Accordingly, the court found there was "no need for the 2001 Amendments," and that therefore, on their face, they were a violation of free speech provisions of the U.S. and State Constitutions. In 2015, a divided Appellate Division affirmed the trial court's judgment. The City appealed. Because the Appellate Division's decision included a two - Justice dissent on question(s) of law in the City's favor, the Court of Appeals of New York had jurisdiction. I © 2017 Thomson Reuters 7